Poli-sandoval Notes (1)

8/20/2019 Poli-sandoval Notes (1)

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Political Law Review Notes (Atty. Edwin Sandoval) Prepared by: Atty Joan P. Gamboa

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THE JUDICIARY

ART. VIII Sec. 1 Par. 1- “The jud icial power shall be vested in one SupremeCourt and in such lower courts as may be established by law”

*The Supreme Court is the only constitutional court.

Q. SB? A. No. It is not a constitu tional court, although mentioned in the Constitution.It is only a constitutionally mandated court.

*Judicial power is not vested in the Supreme Court alone. It is vested as wellin such lower courts as may be established by law. Such lower courts asmay be established by law” (BP 129 Judiciary Reorganization Act of 1980)

*Court of Appeals- referred to as lower collegiate courts

*Regional Trial Courts- courts of general jurisdiction

*Courts of limited jurisdiction- (1) Metropolitan Trial Courts (2) MTCC[chartered cities] (3) Municipal Trial Courts/ Municipal Circuit Trial Courts

*Sandiganbayan- special court having jurisdiction over public officers; co-equal with the Court of Appeals.

*Court of Tax Appeals- special court having jurisdiction over tax appealscases.

*SHARIAH COURTS- pursuant to Muslim Code; 2 levels:

(1) Shariah District Court- equivalent to RTC

(2) Shariah Circuit Court- equivalent to MTC

*QUASI JUDICIAL BODIES - strictly speaking, they are not courts- do notform part of the judicial system.

- They are administrative bodies performing quasi-judicial functions. In

Remedial Law, referred to loosely as “special courts”- Doctrine of PrimaryJurisdiction.

- Part of the executive.

Ex. CSC, SEC, COA, COMELEC

*Since quasi-judicial bodies are not strictly courts, their jurisdiction is strictlyconstrued against them.

JUDICIAL POWER AND POLITICAL QUESTION DOCTRINE

Q. What is JUDICIAL POWER?

A. JUDICIAL POWER includes the duty of the courts of justice to settleactual controversies involving rights which are legally demandable andenforceable, and to determine whether or not there has been a grave abuse

of discretion amounting to lack or excess of jurisdiction on the part of anybranch or instrumentality of the government. (Art. VIII, Sec. 1, Par. 2)

- Not found in the 1935 and 1973 Constitution.

- Represents a broadening of judicial power to enable the courts of justice toreview what was before forbidden territory.

“DUTY” - the provision uses the word DUTY. The settlement of controversiesand the determination of whether or not there has been grave abuse ofdiscretion is not merely a power- it is a duty of the courts as well.

-in power, the power holder has discretion to exercise.

-if it was only a power, then the courts has the discretion to

exercise it or not.Since it is a duty, there is no such discretion- the exercise of the

power is obligatory and mandatory upon the courts.

TWO PARTS OF THE DEFINITION

1. To settle actual controversies involving rights which are legallydemandable and enforceable. (TRADITIONAL)

-Very limited definition. Maybe defeated by the political question doctrine.

2. To determine whether or not there has been grave abuse ofdiscretion amounting to lack or excess of jurisdiction on the part ofany branch or instrumentality of the Government. (EXPANDED)

- Expanded Power of Judicial Review or the Extraordinary Power toDetermine Grave Abuse of Discretion as referred to by the Supreme Court.Political question doctrine has been greatly diminished.

Q. How does the definition of judicial power under the present Constitutionaffected the political question doctrine?

A. The 1987 Constitution expands the concept of judicial review. Under theexpanded definition, the Court cannot agree xxx that the issues involved is apolitical question beyond the jurisdiction of the court to review. When thegrant of power is qualified, conditional or subject to limitations, the issue ofwhether the prescribed qualifications or conditions have been met or thelimitations respected is justiciable – the problem being one of legality or




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validity, not its wisdom. Moreover, the jurisdiction to delimit constitutionalboundaries has been given to this court. When political questions areinvolved, the Constitution limits the delimitation as to whether or not therehas been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the official whose action is be ing questioned.

Q. What are political questions? A.-Origin: The principle of separation of powers.

-In turn, this principle is the result of our Presidential System of Government.

(In a Parliamentary government, the executive and the legislative branchesare welded together)

-Thus, legislative power is given to Congress; executive power is given tothe President and judicial power is given to the Supreme Court- 3 greatpowers distributed among 3 branches of government.

-The legislative and the executive are called POLITICAL BRANCHES of thegovernment, where policies are formulated, enacted and implemented.

-Questions of policy that are formulated by the political branches and thuscannot be the subject of judicial review. This includes questions involving thewisdom, propriety, efficacy or morality of an act.

TAÑADA VS. CUENCO - Classic definition of political question.

POLITICAL QUESTIONS refer to those questions which under theConstitution are to be decided by the people in their sovereign capacity, or inregard to which full discretionary authority has been delegated to thelegislative or executive branch of the government.

TWO TYPES OF POLITICAL QUESTIONS

1. Those questions which under the Constitution are to be decidedby the people in their sovereign capacity.

Ex. Recall under the LGC-A mode of removing a local elective official even before the 3 yearterm on the ground of loss of trust/confidence.-There is only one ground for recall-loss of confidence.

EVARDONE VS. COMELEC

Loss of confidence as a ground for recall is a political question. After all, theinitiation of the recall process is not the recall itself. In the recall election, thepeople will decide whether or not they have lost their confidence in theofficial concerned. Hence, it is a question which has to be decided by thepeople in their sovereign capacity in the recall election itself. Not subject to judicial review.

ESTRADA VS. DESIERTO-EDSA 1

*Lawyers League for a Better Philippines vs. Aquino

*Oliver Lozano filed a petition before the Supreme Court questioning thelegitimacy of the Cory government.

*According to the petition, most of the people who went to EDSA are notreally serious in overthrowing the Marcos government. (Most were vendors)

SC: dismissed the petition.

*No matter, We will no longer inquire into the motives of the people in goingto EDSA. The facts were: because of the magnitude of the people who werein EDSA, Marcos fled to Hawaii, so that the Cory government was able totake effective control of the machinery of the State without resistance fromthe people. Furthermore, the international community has recognized theCory Government. Hence, there can be no more question as to the de jurestatus of the said government.

*The Aquino government was the result of a successful revolution by thesovereign people-it was installed through a direct exercise of the power of

the Filipino people, in defiance of the provisions of the 1973 Constitution.The legitimacy of a government sired by a successful revolution by peoplepower is beyond judicial scrutiny; such government automatically orbits outof the constitutional loop.

Estrada vs. Desierto

*Desierto argues that the legitimacy of Arroyo’s assumption to thepresidency is a political question, and invokes the ruling in the LawyersLeague case.

SC: No. (Justice Reynato S. Puno)

*Arroyo’s government is not revolutionary in character. The oath she took isthe oath under the 1987 Constitution. Indeed, she has stressed that she is

discharging the powers of the presidency under the authority of the 1987Constitution.

LEGAL DISTINCTIONS BETWEEN EDSA 1 AND EDSA 2

EDSA 1 EDSA 2

-Involves the exercise of the peoplepower of revolution whichoverthrows the whole government.

-Extra-constitutional and the

-Involves the exercise of the peoplepower of freedom of speech andfreedom to assemble, to petition thegovernment for redress ofgrievances which only affected the




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legitimacy of the new governmentthat resulted from it cannot be thesubject of judicial review.

-Presented a political question.

Office of the President.

-Intra-constitutional and theresignation of the sitting Presidentthat it caused and the succession ofthe Vice President as president are

subject to judicial review.-Involves legal questions.

2. Those in regard to which full discretionary authority has beendelegated by the Constitution to the executive or legislative branchof the government.

Ex. Calling out power of the President under Article VII, Sec. 18

IBP VS. ZAMORADuring the time of President Estrada, he issued a LOI ordering thedeployment of Marines in the metropolis to conduct joint visibility patrols withmembers of the PNP in various shopping malls. IBP asks that the exerciseof such power be subjected to judicial review.

SC: No. When the President calls the armed forces to prevent or suppresslawless violence, invasion or rebellion, he necessarily exercises adiscretionary power solely vested in his wisdom. This is clear from the intentof the framers and from the text of the Constitution. Thus, the Court cannotbe compelled upon to overrule the President’s wisdom or substitute its own.However this does not prevent an examination of whether such power wasexercised within permissible constitutional limits or whether it was exercisedin a manner constituting grave abuse of discretion.

3 powers under Art. VII, Sec. 18

1. Calling out power as commander-in-chief of AFP2. Declare Martial Law3. Suspend the privilege of the writ of habeas corpus.

*Unlike in the past, the power to declare martial law and to suspend theprivilege of the writ of habeas corpus were expressly made subject of judicialreview.

*Article VII, Sec. 18, Par 3- “The Supreme Court may review in anappropriate proceeding filed by any citizen, the sufficiency of the factualbasis of the proclamation of martial law or the suspension of the privilege ofthe writ or the extension thereof, and must promulgate its decision withinthirty days from its filing.”

CALLING OUT POWER

-It is a political question, a question in regard to which full discretionaryauthority has been delegated by the Constitution to the President.

SC: It is the unclouded intent of the Court to grant to the President fulldiscretionary authority. The hands of the President should not be tied;

otherwise, this could be a veritable proscription for disaster. Unless graveabuse of discretion is shown, the President’s exercise of the power shouldnot be questioned. Mere abuse of discretion will not suffice. To doubt is tosustain.

Q. What is the effect of the EXPANDED CONCEPT OF JUDICIAL POWERon the political question doctrine?

A. It has lessened the political question doctrine. Thus, even if it is a politicalquestion, if there appears to be abuse of discretion, the Court may review it.

*The burden is upon petitioners- the ones assailing the act.

*It must be grave abuse of discretion to warrant judicial intervention.

*Mere abuse of discretion is not enough.*To doubt is to sustain the act of the person.

Q. Why the difference in treatment?

A. Calling out power is the lesser and more benign power while the power todeclare martial law and to suspend the privilege of the writ of habeas corpusare the greater powers which involve direct curtailment of civil libertiesthereby necessitating safeguards of Congress and judicial review of theCourt. (IBP VS. ZAMORA)

DAVID VS. GMA*PGMA exercised the calling out power when she issued GO 5 and PP1017, not the martial law power. The acts taken purportedly to carry out theissuances were ultra vires, hence, unconstitutional. The exercise of thecalling out power does not involve the direct curtailment and suppression ofcivil liberties and individual freedoms. However GO 5 and PP1017 areconstitutional. Petitioners failed to counteract the factual bases therefore asalleged by the Solgen.

Q. Why not the martial law powers?

A. There was no case of invasion or rebellion. President will be required tosubmit report to (kulang page ko, sorry...)




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Q. What are the THREE IMPORTANT FUNCTIONS OF THE COURT?

A. 1. Checking2. Legitimizing3. Symbolic

SYMBOLIC FUNCTION OF THE COURT - It is the duty of the Court toformulate guiding and controlling principles, precepts, doctrines or rules. Ithas the symbolic function of educating the bench and the bar on the extentof protection given by Constitutional guaranties.

Q. What are the requisites for a proper exercise of the power ofJUDICIAL REVIEW?

A. The time-tested standards for the exercise of judicial rev iew are:1. The existence of an appropriate case;2. An interest personal and substantial by the party raising the constitutionalquestion;3. The plea that the function be exercised at the earliest opportunity; and4. The necessity that the constitutional question be passed upon in order todecide the case.

A. THE MEANING OF ACTUAL CASE OR CONTROVERSY

-It means an existing case or controversy which is both ripe for resolutionand susceptible of judicial determination and that which is not conjectural orclarificatory, or that which seeks to resolve hypothetical or feignedconstitutional problems. (IBP VS. ZAMORA)

*There must also be a conflict of rights-opposing views or contentions-if not,the Court would be resolving issues that remain unfocused because theylack concreteness.

*The controversy must also be justiciable-meaning susceptible of judicialdetermination.

Q. May courts render advisory opinions?

A. No, courts can only decide actual controversies, not hypotheticalquestions or cases.

-There must be an actual case or controversy to be resolved.

-The definition of judicial power under Art. VIII is clear. The evil sought to beavoided is the possible violation of due process. It is also repugnant to thePrinciple of Separation of Powers. If a case is bought involving the sameissue, the court might be forced to follow.

*On the other hand, INTERNATIONAL COURT OF JUSTICE can renderadvisory opinions.

Q. Basis?

A. 1. Statute of ICJ itself

2. UN Charter2 MAIN FUNCTIONS OF THE ICJ:

1. To resolve contentious cases

2. To render advisory opinions to UN organs

MOOT AND ACADEMIC CASES - A moot and academic case is one thatceases to present a justiciable controversy by virtue of supervening events,so that a declaration thereon would be of no practical use or value.Generally, courts decline jurisdiction over such case or dismiss it on groundof mootness. (David vs. GMA)

*The moot and academic principle is not a magical formula that canautomatically dissuade the courts in resolving a case. Courts will decide

cases, otherwise moot and academic, if:

1. There is a grave violation of the Constitution;2. The exceptional character of the situation and the paramount public

interest involved;3. When constitutional issue raised requires formulation of controlling

principles to guide the bench, the bar, and the public; and4. The case is capable of repetition yet evading review. (David vs.

GMA)

B. PROPER PARTY REQUIREMENT

Q. What is the meaning of locus standi?

A. LEGAL STANDING or LOCUS STANDI has been defined as a personaland substantial interest in the case, such that a party has sustained or willsustain direct injury as a result of the governmental act that is beingchallenged.

The term INTEREST means a material interest, an interest in issueaffected by the decree, as distinguished from mere interest in the questioninvolved, or a mere incidental interest.

*The gist of the question of standing is whether a party alleges suchpersonal stake in the outcome of the controversy as to assure that concreteadverseness which sharpens the presentation of issues upon which the




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court depends for illumination of difficult constitutional questions. (IBP vs.Zamora)

IBP VS. ZAMORAIBP has no locus standi. The mere invocation of its duty to preserve the ruleof law is a too general interest. It has not shown any injury it has suffered nor

will suffer by virtue of the act complained of. The presumed injury is notpersonal, too vague, highly speculative and uncertain to confer locus standi.However, IBP has advanced constitutional issues which deserve attention ofthis court, in view of their seriousness, novelty and weight as precedents.

TAXPAYER’S SUITTo constitute a taxpayer’s suit, two requisites must be met, namely:

1. That public funds are disbursed by a political subdivision orinstrumentality and in doing so, a law is violated or some irregularityis committed; and

2. That the petitioner is directly affected by the alleged ultra vires act.

KILOSBAYAN VS. MORATO*Kilosbayan filed 2 petitions as a taxpayer.

SC: Taxpayer suit does not lie because the issue does not involve thedisbursement of public funds. Rather, what is involved was the interpretationof the charter of the PCSO.

C. THE CONSTITUTIONAL QUESTION MUST BE RAISED AT THEEARLIEST OPPORTUNE TIME

It is not the date of the filing of the petition that determines whether theconstitutional issue was raised at the earliest opportunity. The earliestopportunity to raise a constitutional issue is to raise it in the pleadings beforea competent court that can resolve the same, such that, “if it is not raised inthe pleadings, it cannot be considered at the trial, and if not considered atthe trial, it cannot be considered on appeal. (Matibag vs. Benipayo)

- However in criminal cases, the accused may raise the constitutionalquestion even for the first time on appeal. This is because criminal casesinvolve the basic rights of the accused to life and liberty.

MATIBAG VS. BENIPAYO

*Matibag questioned the legality of the appointments of Benipayo, Borra andTuason on 03 August 2001, when their first appointments were issued on 22 April 2001. Thus, it is argued that the constitutiona l question was not raisedon the earliest possible opportunity.

SC: No. It is not the date of the filing that determines whether theconstitutional question was raised at the earliest possible opportunity. The

earliest opportunity to raise a constitutional issue is to raise it in thepleadings before a competent court that can resolve it, such that if not raisedin the pleadings, it cannot be raised on appeal. Here, Matibag questionedthe legality of said appointments when she filed her petition before theSupreme Court, which is the earliest opportunity for pleading theconstitutional issue before a competent body.

D. THE CONSTITUTIONAL QUESTION MUST BE THE VERY LIS MOTAOF THE ENTIRE CONTROVERSY

*The constitutional question must be the main issue of the controversy.

*There is no way that the Court may resolve the entire case, unless it firstresolves the constitutional question raised.

AMENDMENTS OR REVISIONS (ARTICLE XVII)

3 ESSENTIAL ELEMENTS OF A GOOD WRITTEN CONSTITUTION:

1. Constitution of Government: Articles VI, VII, VIII, IX, X

2. Constitution of Liberty: Article III (Bill of Rights)

3. Constitution of Sovereignty: Article XVII (Amendatory Process)

AMENDMENT REVISION

-refers to a change that adds,reduces or deletes without alteringthe basic principle involved.

-affects only the specific provisionbeing amended.

-isolated or piecemeal changes in theConstitution.

Ex. Lowering of the voting age.

-implies a change that alters a basicprinciple in the Constitution.

-if the change alters the substantialentirety of the constitution, as whenthe changes affect substantialprovisions of the constitution.

-affects several provisions in theconstitution.

-overhaul of the whole Constitution.Ex. Altering the principle ofseparation of powers or the systemof checks and balances.

TWO PART TEST

1. QUANTITATIVE TEST: asks whether the proposed change is soextensive in its provisions as to change directly the substantialentirety of the Constitution by the deletion or alteration of numerous




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existing provisions. The court examines only the number ofprovisions affected and does not consider the degree of change.

2. QUALITATIVE TEST: inquires into the qualitative effects of theproposed change in the Constitution. The main inquiry is whetherthe change will accomplish such far reaching changes in the nature

of our basic governmental plan as to amount to a revision. Whetherthere is an alteration in the structure of government is a propersubject of inquiry.

*A change in the nature of the basic governmental plan includeschanges in its fundamental framework or the fundamental powers of itsbranches. A change in the nature of the basic governmental plan alsoincludes changes that “jeopardize the traditional form of governmentand the system of checks and balances”. (Lambino vs. COMELEC)

*LAMBINO VS. COMELEC

-Under both the quantitative and qualitative tests, the Lambino group’sinitiative is a revision, not merely an amendment. QUANTITATIVELY, theLambino group’s proposed changes overhaul two Articles-Article VI of the

Legislature and Article VII on the Executive-affecting a total of 105provisions in the entire Constitution. QUALITATIVELY, the proposedchanges alter substantially the basic plan of government from presidential toparliamentary and from a bicameral to unilateral legislature.

STAGES IN THE AMENDATORY PROCESS

1. Proposal2. Ratification

MODES OF PROPOSING AMENDMENTS OR REVISIONS

1. Congress acting as constituent assembly

-One of the non-legislative powers of Congress-Congress meets in order to directly propose amendments or revisions-Requires ! vote of all its members

2. Constitutional convention

-a separate body the members of which are elected

Article XVII Sec. 3- “The Congress may, by a vote of 2/3 of all itsMembers, call a constitutional convention, or by a majority vote of all itsMembers, submit to the electorate the calling of such convention”

2 ways:

a. Congress directly calls a CONCON by 2/3 vote of all its members.

b. The issue of calling a CONCON may be submitted to the people ina plebiscite by majority vote of all members of Congress.

3. People’s initiative on the Constitution (RA 6735)

Article XVII, Sec. 2- “Amendments to this Constitution may likewise bedirectly proposed by the people through initiative upon a petition of atleast 12 percentum of the total number of registered voters, of whichevery legislative district must be represented by at least 3 percentum ofthe registered voters therein. No amendment under this section shall beauthorized within 5 years, following the ratification of this Constitution oroftener than every 5 years thereafter.

The Congress shall provide for the implementation of the exerciseof this right”.

*This applies only to amendments not revisions.

*REQ: A petition signed by at least 12% of the total number ofregistered voters therein of which every legislative district must be

represented by at least 3% of registered voters therein.Q. Is the provision on people’s initiative (Art XVII, Sec. 2) selfexecuting?

A. No. Note the second sentence says- “The Congress shall providefor the implementation of the exercise of this right.” Thus Congressshould enact a law implementing this provision.

Q. Has Congress enacted such law?

A. Yes. Congress enacted a law RA 6735: Initiative and Referendum Act.

3 SYSTEMS OF INITIATIVE:

1. Initiative on the Constitution2. Initiative on Statutes3. Initiative on Local Legislation

SANTIAGO VS. COMELEC (re: Initiative on the Constitution)

*The right of the people to directly propose amendments to the Constitutionthrough the system of initiative would remain entombed in the cold niche ofthe Constitution until Congress provides for its implementation.

*RA 6735 miserably failed to satisfy the requirements in subordinatelegislation in so far as initiative to propose amendments to the Constitution isconcerned.




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*If Congress intended to fully provide for the implementation of the initiativeon amendments to the Constitution, it could have provided for a subtitletherefore, considering that in the order of things, the primacy of interest, orhierarchy of values, the right of the people to directly propose amendmentsto the Constitution is far more important than the initiative on national andlocal laws.

*SC declared RA 6735 inadequate to cover the system of initiative onamendments to the Constitution and have failed to provide a sufficientstandard for subordinate legislation (there is undue delegation of power toComelec). To this extent, RA 6735 is unconstitutional.

*Article XVII, Sec. 2 remains non self executing.

*People’s Initiative on the Constitution is limited only to proposingamendments not revisions.

RATIFICATION

*Any proposed change must be submitted to the people in a plebiscite not areferendum.

*Article XVII, Sec. 4- “Any amendment to or revision of this Constitutionunder Sec. 1 hereof (Con Ass) shall be valid when ratified by a majority ofthe votes cast in a plebiscite which shall be held not earlier than 60 days notlater than 90 days after the approval of such amendment or revision.

“Any amendment under Sec. 2 hereof (Con Com) shall be valid when ratifiedby a majority of the votes cast in a plebiscite which shall be held not earlierthan 60 days nor later than 90 days after the certification by the Comelec ofthe sufficiency of the petition”.

CHA-CHA NOT ALLOWED

*Article XVII, Sec. 2 remains to be non self executing. The implementing lawwas declared unconstitutional. (Santiago vs. Comelec)

*People’s initiative is limited only to amendments.

DOCTRINE OF STATE IMMUNITY FROM SUIT

Article XVI, Sec. 3- “The State may not be sued without its consent.”

Q. What if the Constitution does not provide for state immunity?

A. Through the DOCTRINE OF INCORPORATION (Article II, Sec. 2), thePhilippines have adopted the generally accepted principles of internationallaw as part of the law of the land. State immunity from suit is a generallyaccepted principle of international law. Hence we are bound by it.

Q. Ethical basis?

A. “There can be no legal right against the authority which makes the law onwhich the right depends”. (Justice Holmes)

Q. Does the Doctrine of State Immunity form Suit apply also to foreignagreements?

A. Yes. We are bound by the DOCTRINE OF SOVEREIGN EQUALITY. Allstates are sovereign equals. An equal may not assume jurisdiction overanother equal. Otherwise it will unduly vex the peace of nations. This isanother generally accepted principle of international law as expressed in theLatin maxim par in parem non habet imperium.

Q. Can you sue the State?

A. A State may not be sued without its consent. Hence, you can actually suethe State, for as long as the State gives its consent.

Q. How does a State waive its immunity from suit?

A. Either EXPRESSLY or IMPLIEDLY.

EXPRESSLY: Through the enactment by Congress of a general law orspecial law.

Q. May the Solgen validly waive immunity from suit?

A. No. A mere lawyer of the government cannot validly waive immunity fromsuit. Only the Congress can. (Republic vs. Purisima)

*Waiver of immunity constitutes a derogation of sovereignty. Hence, it isalways construed strictly or strictissimi juris.

1. GENERAL LAW

Ex. Act No. 3083- applies to any money claims arising from contracts withthe government whether express or implied.

-must be correlated with COMMONWEALTH ACT 387 as amended by PD1445 or the GENERAL AUDITING LAW- any money claim arising fromcontract with the government whether expressed or implied must first bepresented to COA and only when COA refuses payment that a party cansue.

Q. Where?

A. SC. Decisions of COA are reviewable by SC via petition for certiorari.(DAR vs. NLRC, J. Vitug)




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Q. A contract was entered into with DPWH for the construction of roads.When the roads were finished, the contractor was not paid. Contractor suedthe government before the RTC. Will the suit prosper?

A. No. It wil l be dismissed for lack of cause of action. He failed to exhaust al ladministrative remedies provided for by law under CA 327 as amended by

PD 1445.2. SPECIAL LAWS

Ex. Article 2180, NCC- “The State is responsible xxx when it acts though aspecial agent xxx.”

Ex. Article 2189, NCC- “Provinces, cities and municipalities shall be liable fordamages for the death of, or injuries suffered by any person by reason of thedefective condition of roads, streets, bridges, public buildings, and otherpublic works under their control or supervision.

TEOTICO VS. CITY OF MANILA

*City of Manila contends that it cannot be held liable under its charter.

*SC held that the provision in the charter is a general provision in a speciallaw. On the other hand, Article 2189 is a special provision found in a generallaw. A special provision found in a general law prevails over the generalprovision found in the charter of the City of Manila. City of Manila is liable.

KILATKO VS. CITY OF DAGUPAN

*City of Dagupan contended that the manhole is found in the national road.

*SC held that the ownership of the road is immaterial. Even if it is a nationalroad, the LGU is liable. Article 2189 merely requires supervision over themaintenance of the national road. City of Dagupan has supervision. Hence,liable.

Ex. Sec. 24, Local Government Code- “Liability for Damages- Localgovernment units and their officials are not exempt from liability for death orinjury to persons or damage to property.”

Ex. Charters of GOCC- GSIS, DBP, LBP

*Charter-special law creating GOCC

*The provision in the charter on whether it may sue or be sued is an expresswaiver by special law.

IMPLIEDLY-2 ways:

1. When the State itself commences litigation, thereby opening itselfto counterclaim.

Ex. Government sued A and A filed an answer with a counterclaim. Thegovernment cannot ask for the dismissal of the counterclaim on theground of state immunity from suit. Otherwise, it would be the height ofinjustice.

2. When the State enters into a contract with private party.

*Here, the government is deemed to have gone down into the level of aprivate entity; there is parity now with the contracting parties; therefore,it is deemed to have waived its immunity from suit.

*This rule used to be absolute. (US vs. Lyons)

*However, this rule is no longer absolute-

US VS. RUIZ

*This involved the construction of wharves in Subic Bay at the timeSubic was still under the US pursuant to a treaty. Contractor was notpaid so he sued the Subic Naval Authorities. Subic Naval Authoritiesmoved to dismiss invoking State Immunity from Suit. On the other hand,the contractor contends that the State entered into a contract (relying on

the old rule).SC: The traditional rule of immunity exempts a state from being sued incourts of another state without its consent or waiver. This rule is anecessary consequence of the principle of independence and equalityof states. However, rules of international law are not petrified; they areconstantly developing and evolving. And because the activities of thestates have multiplied, it has been necessary to distinguish thembetween sovereign and governmental acts (jure imperii) and private,commercial and proprietary acts (jure gestionis). The result is that stateimmunity now extends only to acts jure imperii. The restrictiveapplication of state immunity is now the rule in the US, UK and otherstates in Western Europe.

*A state may be said to have descended to the level of an individual andthus deemed to have tacitly given its consent to be sued only when itenters into business contracts.

*The purpose of the wharves is the defense of US troops and of thePhilippines. Defense of the state is of the highest order and hence, is jure imperii.

*Case was dismissed because there was no waiver.

*Not all contracts are deemed to be a waiver of state immunity; mustdistinguish between:




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ACTA JURE IMPERII: contracts entered into by the government in itssovereign capacity; no waiver of state immunity from suit.

ACTA JURE GESTIONIS: contracts entered into by the government inits commercial and proprietary capacity; there is waiver of stateimmunity from suit. (Restrictive Doctrine of State Immunity from Suit)

Q. In the Ruiz case, can the contractor invoke Act No. 3083?

A. No. Because Act No. 3083 waives the immunity of the Philippinegovernment only; not of other governments.

Q. What is the remedy of the contractor?

A. Under international law, he will have to convince his state through theassistance of the Department of Foreign Affairs to take his case up with theother state.

Q. Raintree contracted with the Armed Forces of the Philippines for thesupply of ponchos to be used by the soldiers. Raintree was not paid. CanRaintree sue?

A. Yes, under Act No. 3083. This is a money claim arising from contract.There is no need to invoke implied waiver, since there is already an expresswaiver.

US VS. GUINTO

A Filip ino cook in a restaurant inside Camp John Hay poured urine into thesoup stock used in cooking the vegetables served to the customers. He wasdismissed. He filed a complaint for damages against the US Air ForceRecreation Center at Camp John Hay who operates the restaurant. Thelatter invoked the Doctrine of Immunity from Suit and moved to dismiss.

SC: The restaurant services offered partake of the nature of a businessenterprise undertaken by the US government in its proprietary capacity.Such services are not extended to the American servicemen for free as a

perquisite of membership in the Armed Forces of the US. Neither does itappear that they are exclusively offered to these servicemen; on thecontrary, it is well known that they are available to the general public as well,including the tourists in Baguio City, many of whom make it a point to visitJohn Hay for this reason. All persons availing themselves of this facility payfor the privilege like all other customers in ordinary restaurants. Although theprices are concededly reasonable and relatively low, such services areundoubtedly operated for profit as a commercial and not a governmentalactivity.

*The case was remanded to the Labor arbiter. There is waiver of immunity.

SUABILITY VS. LIABILITY

*The circumstance that a state is suable does not necessarily mean that it isliable. A state can never be held liable if it does not first consent to be sued.SUABILITY is just a matter of a state giving its consent to be sued.LIABILITY is a matter of applicable law and circumstance of the case.Liability is not conceded by the mere fact that the state has allowed itself tobe sued. When the state does waive its sovereign immunity, it is only givingthe plaintiff the chance to prove, if it can, that the defendant is liable.

*Waiver merely gives the claimant the opportunity to prove that the state isliable.

MUNICIPALITY OF SAN FERNANDO LA UNION VS. JUDGE FIRME

San Fernando owned a dump truck being driven by its official driver, whilehauling gravel, it collided with a jeep, killing the latter’s passenger. The heirssued the municipality for damages. The municipality moved to dismiss onthe ground of immunity of state from suit. Without resolving the motion,Judge Firme proceeded to resolve the case and held the municipality liablesince its charter expressly provides that it may sue and be sued.

SC: Suability is not the same as liability. Municipality can invoke defenses-that at the time the accident happened, it was engaged in the performanceof governmental function (repair of municipal roads). This is a case ofDAMNUM ABSQUE INJURIA (Damage without injury).

Q. What if the dump truck was then hauling lumber for the repair of a publicmarket instead of gravel for the repair of municipal road?

A. The operation of a public market is a proprietary function. It i s classifiedas a business enterprise of the local government. Hence, the municipalgovernment would then be in the performance of a proprietary function. Assuch, it would not be a valid defense to liability.

TORIO VS. FONTANILLA

*The holding of a town fiesta even if the purpose is to commemorate areligious or historical event of the town is in essence an act for the specialbenefit of the community and not for the general welfare of the publicperformed in pursuance of a policy of the state. xxx It is a proprietary activity.Thus, the municipality may be held liable.

EXECUTION OF JUDGEMENT

Q. Assume that you are allowed by the State to sue. After trial, judgementwas rendered in your favor, holding the State liable. Judgement thereafterattained finality. Can you garnish or levy government funds to execute the judgement?




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A. No. It will paralyze the operations o f the government. Waiver extends on lyup to the rendition of judgement. Execution requires another waiver. Thedisbursement of public funds requires an appropriate appropriation law.

Q. Remedy?

A. To make representation with the proper legislative authority for the

enactment of an appropriation law necessary to satisfy the judgement.

Q. What if the legislative authority refuses to enact the law?

A. Go to the courts and ask for MANDAMUS to compel the legislativeauthority to enact the required law. True, the duty to appropriate isdiscretionary. The exception however, as in this case, is when there isalready a money judgement against the government, the discretionary dutybecomes ministerial. The state must be the first to respect and obey thedecisions of the Courts. (Municipality of Makati vs. IAC)

SUITS AGAINST GOVERNMENT AGENCIES AND INSTRUMENTALITIES

Distinguish:

1. INCORPORATED AGENCIES: These are agencies with separatecharters creating them.

- They have personality separate and distinct from the Philippinegovernment.

- The test of suability will depend whether or not its charter allows itto sue and be sued.

Ex. SSS, GSIS, PCSO, Phil. Postal Corporation

2. UNINCORPORATED AGENCIES: These agencies have no charter.

- They do not have separate personality. A suit against them is reallya suit against the government. Test of suability depends uponwhether or not it is performing a governmental or proprietary

function.SUIT AGAINST PUBLIC OFFICIALS

Q. When do you consider a suit against public officials as a suit against thestate itself?

A. The suit must be regarded as one against the State where the satisfactionof judgement against the public official concerned will require the State itselfto perform a positive act such as appropriation of the amount necessary topay the damages awarded to the plaintiff. (LANSANG VS. GARCIA)

*The official was charged in his official capacity in the performance of officialduties. In this case, the official was acting only as an agent of the State.

*However, this rule does not apply if:

(1) Acts were unlawful or illegal;

(2) Acts were done in a personal capacityREPUBLIC VS. SANDOVAL

*This case does not qualify as a suit against the State. xxx While theRepublic in this case is sued by name, the ultimate liability does not pertainto the government. Although the military officers and personnel weredischarging their official functions when the incident occurred, their functionsceased to be official the moment they exceeded their authority. Based on thecommission findings, there was lack of justification by the government forcesin the use of firearms. Moreover, the members of the police and militarycrowd dispersal units committed a prohibited act under BP 180 as there wasunnecessary firing by them in dispersing the marchers.

EXCEPTIONAL CASES: The doctrine of State Immunity from Suit cannot

serve as an instance to perpetuate injustice on a citizen.*However, this should not be invoked indiscriminately because thecircumstances obtaining in the following cases are peculiar.

AMIGABLE VS. CUENCA

*Amigable owned a lot in Cebu City. There is no annotation in favor of thegovernment in the TCT. Then without prior appropriation or negotiated sale,the government used a portion of the said lot for the construction of roads. Amigable then filed a complaint against the Republic, and Cuenca, in thelatter’s capacity as Commissioner of Public Highways.

SC: Where the government takes away property from a private landownerfor public use without going through the legal process of expropriation or

negotiated sale. The aggrieved party may properly maintain a suit againstthe government without thereby violating the doctrine of governmentalimmunity from suit without its consent.

REASON-MINISTERIO VS. CFI OF CEBU

*The doctrine of governmental immunity from suit cannot serve as aninstrument of perpetration of injustice on a citizen. Had the governmentfollowed the procedure indicated by the governing law (Rule 87) at the time,a complaint would not have been filed by it and only upon payment ofcompensation fixed by the judgement or after tender of the party entitled tosuch payment of the amount fixed. May it “have the right to enter in and




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upon the land so condemned, to appropriate the same to the public usedefined in the judgement.”

*Actually, in Amigable and Ministerio cases there is an implied waiver. Thisimplied waiver lies in the failure to commence the proper action. The actionfiled by the petitioners amount to a counterclaim, had the government fledthe proper action. It only became a petition because the government did notfollow the legal procedure.

CITIZENSHIP

(ARTICLE IV, 1987 CONSTITUTION)

The following are the citizens of the Philippines (Sec. 1)

1. Those who are citizens of the Philippines at the time of the adoptionof the 1987 Constitution.

2. Those whose fathers or mothers are citizens of the Philippines.

3. Those born before 17 January 1973, of Filipino mothers, who electPhilippine citizenship upon reaching the age of majority

4. Those who are naturalized in accordance with law

1. Those who are citizens of the Philippines at the time of the adoptionof the 1987 Constitution.

Q. When was the 1987 Constitution adopted? A. 02 Feb. 1987- at the time of the plebiscite*Not 11 Feb. 1987=When Pres. Aquino declared its ratification.

2. Those whose fathers or mothers are citizens of the Philippines.

* Note that the provision says “OR”- not “and.” This means that as long as 1of your parents is a Filipino, you are a Filipino.

*This is in accordance with our adherence to the principle of jus sanguinis.

*This results in complications when the country where you are born appliesthe principle of jus soli.

*Complications arise with respect to the matter of dual allegiance. (See Sec.5)

VALLES VS. COMELEC (337 SCRA 543, 09 Aug. 2000)

*Rosalind Lopez was born in 1934, in Australia to a Filipino-father, who wasborn in 1879, and an Australian-mother. When she came to the Philippines,she was holding an Australian passport and was registered as an alien in theBID. Then, Rosalind ran for governor.

SC: Rosalind is a Filipino citizen. (1) Her father is a Filipino- Her father is aSpanish subject. In 1898, when the Spanish ceded the Philippines to the US,under the Jones Law and the Philippine Bill of 01 July 1902, all inhabitants ofthe Philippines who were Spanish subjects are deemed to be Philippinecitizens. [This is the first time that there came to be Filipino citizens. It wasan “en masse citizenship” because of a change of sovereignty].

(2) Rosalind is a Filipino- Philippine law on citizenship adheres to theprinciple of jus sanguinis, where a child follows the nationality of the parentsregardless of the place of his/her birth. Hence, Rosalind’s father is a Filipino,she is a Filipina. Her being born in Australia is not tantamount to her losingher Philippine citizenship. Even if Australia follows jus soli, it only results toher possessing dual citizenship.

(3) Effect of holding an Australian passport- mere holding of an Australianpassport does not mean renunciation of Philippine citizenship. In order tolose Philippine citizenship by renunciation, such renunciation must beexpress—the person renouncing must perform a positive act. (See Mercadovs. Manzano and Aznar vs. Comelec)

3. Those born before 17 January 1973, of Filipino mothers, who elect

Philippine citizenship upon reaching the age of majority

3 Requisites for the application of this provision:

(1) They were born before 17 Jan. 1973.(2) Their mother is a Filipino.(3) They elect Philippine citizenship upon reaching the age of

majority.History of the provision:

- Under the 1935 Constitution, legitimate minor children follow thecitizenship of their father. Thus one with an alien father and aFilipina, mother, would, during minority, be an alien. Hence, he isgiven, upon reaching the age of majority, the option to elect.

- Note that this is the reason why the provision applies only to thoseborn of “Filipino mothers”.

- One with a Filipino-father and an alien mother would still be aFilipino, since he follows his father’s citizenship.

*These are Natural-Born Citizens (See Sec. 2)

Q: When Should Election Be Made

A: “Reasonable Time from Reaching Age of Majority”—RE: Application for Admission to the Philippine Bar, Vicente D. Ching (Bar Matter No. 914, 01Oct.1999)




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*Ching was born in 1964, of Chinese father and Filipina mother. Ching nowseeks to elect Philippine citizenship so he can be admitted to the PhilippineBar.

SC: The 1935 Constitution only states that Philippine citizenship should bechosen upon age of majority. CA 625 states the child should be given areasonable time to elect Philippine citizenship. This reasonable time hasbeen construed to be 3 years upon reaching the age of majority.

Here, Ching seeks to elect only 14 years after reaching the agemajority. This is way beyond the contemplated period for electing Philippinecitizenship. One who is privileged to elect Philippine citizenship has only aninchoate right to such citizenship—as such, he should avail of the right withfervor, enthusiasm and promptitude.

4. Those who are naturalized in accordance with law

TECSON VS. COMELEC

*FPJ was born in 1939, of a Filipino father and an American mother. Hisparents got married only in 1940.

SC: FPJ is an illegitimate child because his parents got married only after hisbirth. However, the 1935 Constitution states that “those whose fathers arecitizens of the Philippines” acquire Philippine citizenship. Thus, it did notdistinguish whether the child is legitimate or illegitimate.

The rule is different when it is the mother who is a Filipino. Here, ifthe child is legitimate—he can elect Philippine citizenship upon reaching theage of majority. If he is illegitimate, he will follow the mother’s citizenship.The reason for this rule is to ensure Filipino nationality of the child so as notto prejudice. Normally, since he is illegitimate, the mother would havecustody and have parental authority.

*Natural-Born Citizens (Sec. 2)

2 Kinds of Natural-Born Citizens:

1. Those who are citizens of the Philippines from birth without having toperform any act to acquire or perfect their Philippine citizenship.

2. Those who elect Philippine citizenship in accordance with par (3), Sec. 1

- In this case, the person has to perform an act to perfect his Philippinecitizenship.

-Thus, this constitutes an exception to the 1st kind of Natural-Born Citizens.

BENGSON III VS. HRET (GR 142840, 07 May 2001)

Cruz lost his Philippine citizenship when he rendered service in the US Armed Forces, but re-acquired it through repatriation under RA 2630. Hethen ran, and won, as Congressman. His qualification was questioned on theground that he is not a natural-born citizen.

SC: He is a natural-born citizen. (1) Effect of Repatriation—Repatriationresults in the recovery of the original nationality. Thus, a naturalized Filipinowho lost his citizenship will be restored to his prior status as a naturalizedFilipino. On the other hand, if he was originally a natural-born citizen beforehe lost his citizenship, he will be restored to this former status as a natural-born Filipino.

(2) Kinds of Citizens under the Constitution—There are only 2 classes ofcitizens under the Constitution—(a) natural-born and (b) naturalized inaccordance with law. A citizen who is not a naturalized Filipino—one whodid not undergo the process of naturalization—is a natural-born Filipino.Noteworthy is the absence in the enumeration of a separate category forpersons who, after losing Philippine citizenship, subsequently reacquires it.This is because such whether such persons are natural-born or naturalized

depends on the reasons for the loss of their citizenship and the modeprescribed by the applicable law for the reacquisition thereof.

Marriage to foreigners—Art. IV, Sec. 4

*”Citizens of the Philippines who marry aliens shall retain their citizenship,unless by their act or omission they are deemed, under the law, to haverenounced it.”

*History of the provision:

-This provision was carried over from the 1973 Constitution. In the 1935Constitution, there is no similar provision. Thus, women were prejudiced—when they marry a foreigner, they lose their Filipino citizenship.

Ex. Biel vs. Director of Public Schools-A public School teacher was removed from her position because shemarried her Chinese lover.

-However, if the woman just maintains a live-in relationship with a foreigner,she does not lose her Philippine citizenship—there is no marriage.

-Thus, they are better situated than those who contracted marriage withforeigners.--> Absurd!




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*In relation to Sec. 1 (3)

-Under the 1935 Constitution, the children of a Filipina-mother and an alien-father who had a common law relationship are Philippine citizens.

-No need to elect.

Q. Why? A. Being illegitimate children, they follow the citizenship of their

mothers, who remain to be Filipinos since they are not married to aliens.

-This is another absurdity.

Thus:

1. In 1970, Filipina married a foreigner

-Filipina loses Philippine citizenship.

-The 1935 Constitution had no provision similar to Art. IV, Sec. 4

2. In 1975, Filipina married a foreigner

-Filipina retains Philippine citizenship.-The 1973 Constitution had a provision similar to Art. IV, Sec. 4.

Modes to Acquire Philippine Citizenship:

1. Birth

2. Naturalization

Loss and Re-Acquisition of Philippine Citizenship

-Art. IV, Sec. 3—“Philippine citizenship may be lost or reacquired in themanner provided by law”.

Ways by which Philippine Citizenship may be Re-Acquired:Naturalization, Repatriation, and by Direct Act of Congress

1. Naturalization2. Repatriation

*Process is simple—requires only:

1. Take oath of allegiance2. Registration with the Civil Registry

*Available when the loss of citizenship is due to:

(1.) Desertion of the Armed Forces (CA 63)(2.) Service in the Armed Forces of Allied Forces during WW 2 (RA965)

(3.) Service in the US Armed Forces (RA 2630) *See Bengzon IIIvs. HRET

(4.) Marriage of Filipino woman to an alien, political or economic necessity(RA 8171)

Naturalization vs. Repatriation

Naturalization Repatriation

1. As to Nature

2. As to process

-A mode of acquisition andreacquisition of Philippinecitizenship.

*As a mode of acquisition-CA 473 governs

*As a mode of re-acquisition- CA 63 governs.

-Very cumbersome andtedious.

-A mode of re-acquisitionof Philippine citizenship.

-Simpler process

3. Direct Act of Congress

*Dual Allegiance—Art. IV, Sec. 5

*”Dual allegiance of citizens is inimical to the national interest and shall bedealt with in accordance with law.”

Q. Is this provision self executing?

A. No. It says “shall be dealt with by law”. It means a future law.

Q. Is there now a law that prohibits dual allegiance?

A. Yes. RA 7160, Sec. 40 (d) (Local Government Code)

“The following are disqualified from running for any elective local position:xxx

(d) Those with dual citizenship” (See Mercado vs. Manzano)

MERCADO VS. MANZANO (307 SCRA 630, 26 May 1999)

*Edu Manzano was born in the US, of Filipino parents. In 1998 he ran forvice-mayor of Makati. His qualification was challenged. Note that RA 7160,Sec. 40 (d) disqualifies those with dual citizenship from running for localelective office.




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SC: He is qualified to run. (1) Manzano has dual citizenship—since hisparents are Filipinos, he is a Filipino; since he was born in the US, he is alsoa US citizen. Thus, he has dual citizenship.

(2) Dual Allegiance is Prohibited, Not Dual Citizenship—what is prohibited bythe Constitution is dual allegiance, not dual citizenship. The concern of theConstitutional Commission was not with dual citizens per se, but withnaturalized citizens who maintain their allegiance to their countries of origineven after their naturalization. Hence, the phrase “dual citizenship” in RA7160, Sec. 40 (d) must be understood as referring to “dual allegiance”.Hence, persons with mere dual citizenship do not fall under thedisqualification.

Situations Where Dual Citizenship Arises:

a. Those born of Filipino fathers and/or mothers in foreign countrieswhich follow the principle of jus soli.

b. Those born in the Philippines of Filipino mothers and alien fathers, ifby the laws of their father’s country, such children are citizens of thatcountry.

c. Those who marry aliens if by the laws of the latter’s country theformer are considered citizens, unless by their act or omission they aredeemed to have renounced their Philippine citizenship.

Dual Allegiance vs. Dual Citizenship

Dual Allegiance Dual Citizenship

1. As to how it results

2. As to voluntariness

-A situation where aperson simultaneouslyowes, by some positiveact, loyalty to 2 or morestates.

-Voluntary.

-Arises when, due tothe concurrentapplication of thedifferent laws of 2 ormore states, a personis simultaneously

considered a nationalby said states.

Involuntary.

RA 9225—Dual Citizenship Law (Citizenship Retention and Re-Acquisition Act of 2003)

RULE: Natural-born Filipinos who lost their Philippine citizenship bynaturalization as citizens of a foreign country shall re-acquire/retain theirPhilippine citizenship upon taking the Oath of Allegiance. (Sec. 3, RA 9225)

Effect of Re-Acquisition on Civil and Political Rights- the followingrights can be exercised, subject to certain conditions:

1. Right to vote- RA 9225 Sec. 5 (1) - must meet requirements of Sec. 1, Art. V and of RA 9189 (Overseas Absentee Voting Act of 2003)

2. Elective Public Off ice – RA 9225 Sec. 5 (2) – must renounce foreign

citizenship before any public officer authorized to administer oath.-Done at the time of the filing of the certificate of candidacy.

-Thus, he will lose his dual citizenship- will have just 1 citizenship.

3. Appointive Public Office – RA 9225 Sec. 5 (3) – must also renounce.

4. Practice of Profession – subject to guidelines of proper regulatoryagency.

- Art. 12, Sec. 14, 2nd par., 1987 Constitution- “The practice of all professionsin the Philippines shall be limited to Filipino citizens, save in casesprescribed by law.”

Q. X was born in the USA on Jan. 10, 1973, of a Filipino mother and

American father. He studied and worked in the Philippines. Can he run forMayor?

A. (1) Under the 1935 Constitution, which was governing at the t ime of X’sbirth, he should elect Philippine citizenship upon reaching the age ofmajority.

(2) Under RA 9225, he is also a dual citizen—hence, he should firstrenounce his American citizenship.

*Res Judicata in Citizenship Cases

GR: No res judicata in cases of citizenship.

EXCEPTION: Burca vs. Republic (51 SCRA 248, 1973)

When the following requisites concur:

1. When the person’s citizenship is raised as a material issue in acontroversy where said person is a party;

2. When the Solicitor General or his authorized representative took activepart in the resolution thereof; and

3. When the finding on citizenship is affirmed by the SC.




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STRUCTURE OF GOVERNMENT

3 Parts of a Written Constitution:

(1) Constitution of sovereignty – This refers to thee provisions pointing outthe modes or procedure in accordance with which Formal changes in theconstitution may be made.

Ex: Article XVIII – “Amendments or Revisions”

(2) Constitution of Liberty – the series of prescriptions setting forth thefundamental civil and political rights of the citizens and imposing limitationson the power of the government as a means of securing the enjoyment ofthose rights.

Ex: Article III – Bill or Rights

(3) Constitution of Government – provides for a structure and system ofgovernment; refers to the provisions outlining the organization of theGovernment, enumerating its powers, laying down certain rules relative to itsadministration and defining the electorate.

Ex: Article VI – Legislative Department Article VII – Executive Department Article VIII – Jud icial Department Article IX – Const itutional Commissions

Doctrine of Separation of Powers in a presidential type of government

The 3 great powers are distributed among the 3 great branches ofgovernment:

Legislative power – Legislative branch / Congress

Article VI, Sec 1 – “The legislative power shall be vested in thecongress of the Philippines…”

This is also called the POWER OF THE PURSE.Executive power – Executive branch / President

Article VII, Sec 1 – “The executive power shall be vested in the

President of the Philippines…”

This also called the POWER OF THE SWORD

Judicial power – Judiciary / Supreme Court

Article VIII, Sec 1 – “The judicial power shall be vested in oneSupreme Court and in such lower courts as may be established bylaw .”

This is also called the POWER OF JUDICIAL REVIEW

The legislative and the executive branches are called thePOLITICAL BRANCHES.

Corollary to the principle of separation of powers:

Principles of checks and balances - Each branch of the government is acheck of the others so that power will not be concentrated which might leadto abuse and irreparable damage.

This allows 1 department to resist encroachments upon its prerogatives or torectify mistakes or excesses committed by the other departments.

Ex: veto power of the President.

Principle of non-delegation of Powers

GR – “Potesta delegata non potest delegari” – Power delegated may nolonger be delegated.

XPNs: Instances of permissible delegation – PETAL

Delegation to the People under the systems of initiative and referendum(plebiscite, Art. VI, Sec 1)Delegation to the President of Emergency powers (Art VI, Sec 23)Delegation to the President of Tariff powers (Art VI, Sec 28[2])Delegation to Administrative BodiesDelegation to Local governments (Art. X)

NOTE: There must always be an EXPRESS delegation! (byLaw/Constitution)

Q. What are the requisites before emergency powers may be delegated tothe President?

A. Under Article V I. Section 23. there are four:

There must be a war or other national emergency.The delegation shall be for a limited period only

The delegation must be pursuant to a declared national policy

The delegation is subject to such restrictions and limitations as Congressmay prescribe.

! The power is delegated from the Congress to the President (David vs Arroyo)

Q. What is meant by delegation to administrative bodies?




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A. It is the delegation of quasi-legislative powers to administrativeagencies.

refers to the rule making power or power of subordinate legislation or powerto promulgate rules and regulations to implement a given law/legislative

policy.Operative word, “or” meant equivalent terms

The power to ENACT laws still belongs to Congress.

! Tests of valid delegation vs. abdication of power

Completeness Test - The law delegating the power must be complete initself in the sense that the body on whom the power is delegated must haveno discretion to exercise the power but to enforce it.

The law must be complete in all its terms and conditions, such thatthere is nothing more to be done by the body but to enforce it.

The law must set forth the policy to be executed, carried out orimplemented by the delegate.

The delegate must not be authorized to fill in the gaps.

Sufficiency of Standards Test - The law must provide for standards thatare determinate or at least determinate, which will define the limits of adelegate’s authority.

The standard will guide the delegate in the exercise of thedelegated power which standards must be determinate/determinable.

Q. What is a sufficient standard?

A. It is one that defines legislative policy, marks its limits, maps out itsboundaries and specifies the public agency to apply it.

Ex: (1) Power to organize agencies was delegated to the PresidentStandard: to streamline the bureaucracy for economy andsufficiency.(2) Power to issue franchises delegated to LTFRBStandard: For public convenience and security

The standards need not be found in the law delegating the power. Instead,standards may be found in other laws – what is important is that thestandards are determinate or at least determinable (Chong Bian vs Ci-Bos)

If the delegation meets the tests, it is valid.

What is prohibited is undue delegation or a delegation running riot.

If there is undue delegation, it is no longer delegation of power butabdication of power in favor of the delegate, which violates the doctrine ofseparation of powers.

Ratio: You cannot expect the Congress to anticipate all.

Article VI – LEGISLATIVE DEPARTMENT

Legislative Power

Article VI, Sec 1: “The legislative power shall be vested in the congress ofthe Philippines, which shall consist of a Senate and a House ofRepresentatives , except to the extent reserved to the people by the

provisions on initia tive and referendum.”

Q. What power is vested in Congress?

A. Legislative Power under Artic le VI, Sec. 1 (The Power of the Purse).

Q. Is legislative power exclusively vested in Congress?

A. NO. Unlike in the 1935 constitution where the legislative power isexclusively vested in Congress, under the 1987 constitution, there is areservation made to the people (initiative and referendum). (Art VI, Sec1).

The legislative power is not exclusively vested in Congress! It is vestedin:

Congress – made up of 2 houses:SenateHouse of Representatives

(We have a Bicameral Congress)The houses are co-equal bodies; hence the terms “upper house” and “lowerhouse” are inaccurate!

Bicameral Conference Committee

See Phil. Judges Association vs. Hon. Prado, and

Tolentino vs. Secretary of Finance.

Undue delegation to the delegate




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“…to the extent reserved to the People by initiative and referendum”

Article V I, Sec. 32 – The Congress shall, as early as possible, provide for asystem of initiative and referendum, and the exceptions there from.

This is not self-executing.

Q. Has the Congress enacted a Law?

A. YES. R.A. 6735 (Initiative and Referendum Law) is the implementingprovision of Sec 1 Art VI, 1987 Constitution.3 kinds of Initiative under RA6735:1. Initiative on the Constitution-

1. declared unconstitutional (Santiago vs.COMELEC) 2. Initiative on Statutes

Implemented Article VI. Sec 1* - Refers to petitions proposing to enact a national legislation- Valid

3. Initiative on Local Legislationrefers to petitions proposing to enact, amend, or repeal local ordinances.Valid.

Bar Q: What is initiative? What is Referendum? A: Initiative is the power of the people to propose amendments to theConstitution on to propose and enact legislations through an election for thepurpose (Sec 3(a), RA6735).Referendum is the power of the electorate to approve or reject a legislationthrough an election called for the purpose (Sec. 3©, RA6735).

Q: May the President enact laws?

A: NO. Legislative power is vested in Congress. Legislative power includesthe power to ENACT, AMEND, or REPEAL. The power vested on thePresident is the EXECTIVE POWER or the power to IMPLEMENT laws.

PRESIDENT’S PARTICIPATION IN THE LAW-MAKING PROCESS

Q: Does the President have any participation in the Law-making process?

A: Yes, in the fo llowing instances: [SBUVS]

(1) When he exercises his veto power

Article VI, Sec 27. – “Every bill passed by Congress shall before it becomesa law, be presented to the president. If he approves the same, he shall signit; otherwise, he shall veto it…”

(2) When the president vetoes a bill, that bill doesn’t become a law.(3) Whenhe calls for a special session

Art VI. Sec 15 – “The president may call a special session at any time”

In effect, he will initiate the process

When the president certifies as the urgency of the bill to meet a publiccalamity or emergency.

Art VI, sec 26 (2) “No bill passed by either house shall become a law unlessit has passed three (3) readings on separate days x x x except when the president certifies as to the necessity of its immediate enactment to meet a public calamity or emergency .”

The president hastens the process by dispensing with 3 separate readingson 3 separate days rule.

(4)

When the president signs a bill that becomes a law

Art VI, sec 27 – “Every bill passed by Congress shall before it becomes a

law, be presented to the president. If he approves the same, he shall signit…”

The president performs the last operative act for a bill to become a law.

When the president prepares a budget which is the basis of the GENERAL APPROPRIATIONS ACT.

Art VII, Sec 22 – “The president shall submit to the congress x x x as basis

of the general appropriations bill a budget for expenditures and sources offinancing, including receipts from existing and proposed revenue measures .”

NON-LEGISLATIVE POWERS OF CONGRESS (9): [IBAWI PA CE]

(1) Investigative power / power to conduct investigation (inquiries inaid of legislation)

Art VI, Sec 21 – “The senate or the house of representatives or any of itsrespective committees may conduct inquiries in aid of legislation or inaccordance with its duly published rules of procedure…”

(2) Power to declare the existence of a state of War

Art VI, Sec 23 – “The congress by a vote of 2/3 of both houses in jointsession assembled, voting separately, shall have the sole power to declarethe existence of a state of war.” [*then based on such declaration, delegateemergency powers to the President](3) Power to confirm a presidentialappointments [through commission on Appointments]




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Art VII, Sec 16 – “The president shall nominate and with the consent of theCommission on Appointments, appoint the heads of the executivedepartments, ambassadors, other public ministers and consuls or officers ofthe armed forces from the rank of colonel or naval captain, and other officerswhose appointments are vested in him in this constitution.”

(4) Power to punish for contempt

- Incidental to the power to conduct inquiries in aid of legislations.

(5) Power to impeach and to try cases of impeachment

As a prosecutorial body: Art XI, Sec 3(1) – “The House of Representativesshall have the exclusive power to initiate all cases of impeachment.

As an impeachment Court: Art XI, Sec 3(6) – “The senate shall have thesole power to try and decide all cases of impeachment x x x “

(6) Power to judge election contests involving their members throughthe Electoral tribunal

Art VI, Sec 17 – “The senate and House of Representatives shall each haveelectoral tribunals which is the sole judge of all contests relating to theelection returns and qualifications of their respective members x x x”

(7) Power to concur in Amnesty Proclamation

Art VIII, Sec 19(2) – “He shall have the power to grant amnesty with theconcurrence of a majority of all the members of the Congress”

(8) Power to propose amendments to, or revisions of the constitution,when acting as constituent assembly

Art XVII, Sec 1(2) – “Any amendment to, or revision of, this constitution maybe done by: (1) The congress, upon a vote of ! of all its members; x x x” (9)Power to act as board of canvassers in presidential and vice-

presidential elections. Art VII, Sec 4(4) – “Upon receipt of the certificates of canvass, the presidentof the Philippines shall, not later than 30 days after the day of the election,

open al certificates in the presence of the Senate of the House ofRepresentatives in joint and public session, and the Congress, upondetermination of the authenticity and due execution thereof in the manner provided by law, canvass the votes.”

Composition of CONGRESS

(a) Senate – 24 senators elected at large;Term: 6 years

Term limit: 2 Consecutive terms(b) House of Representatives

Term: 3 yearsTerm limit: 3 consecutive terms Art VI, Sec 5(1) – “The HOR shall be composed of not more than250 members, unless otherwise fixed by law, who shall be elected

from legislative districts apportioned among the provinces, cities,and the metropolitan manila area x x x”This provision is already Functus Officio!

Congress has the power to reapportion district every census, under

Art VI, Sec 5(4) –

Within 3 years following the term of every census, the congress shall make are-apportionment of legislative districts based on the standards provided inthis section.”

Qualifications: (

MARCOS vs. COMELEC

In her application for candidacy, Imelda wrote “7 months requirement”, thenamended it and wrote, “Since birth”. The SC decided in favor of Imelda. SC: in political law, “residence” is considered as “domicile”.

Senator Representative

(1) Citizenship Natural born

(2) LIteracy Able to read and write

(3) Voter Registered voter

(4) Age 35 years of ageon the day ofelection

25 years of age on the day ofelection

(5) Residence 2 years residence 1 year in the d istrict he isrepresenting.

(6) Term 6 years, 2consecutive term-limit

3 years; 3 consecutive term-limit.




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Kinds of Congressmen:

Art VI, Sec 5(1) – “The HOR shall be composed of not more than 250members, unless otherwise fixed by law, who shall be elected fromlegislative districts x x x and those who, as provided by law, shall be electedthrough a party-list system of registered national, regional, and sectoral

parties or organizat ions.”

(1) District representatives

(2) Party-list representatives

this absorbed the sectoral representatives

Art VI, Sec 5(2) – “x x x for 3 consecutive terms after the ratifications of thisconstitution, " of the seats allocated to the party-list representatives shall befilled as provided by law, by selection or election from the labor, peasant,urban poor, indigenous cultural communities, women, youth, and such othersectors as may be provided by law, except the religious sector.”

[other sectors: f isher folks, elderly, handicapped (Sec 5, RA7941)].

PUF – LICE – HWY – O

Xpn: Religious sector

Party list system

Implemented by RA7941 (Party-list law)

Adopted the German model of the party list system

1998 elections: first time we had party list election

Borrowed concept from parliamentary system

See: Ang bagong-bayani-OFW labor party vs. COMELEC (June 26, ‘01En Banc)

Q: What is the nature of the party-list system? A: The party-list system is a social justice tool designed not only to

give more in life to the great masses of our people who have less in life, butalso to enable them to become veritable (genuine/real) law makersthemselves. It

intends to make the marginalized and underrepresented active participantsin the mainstream of representative democracy.

The party list system is one such tool intended to benefit those whohae less in life. It gives the great masses of our people the genuine hopeand genuine power. It is a message to the destitute and the prejudiced, and

even to those in the underground (e.g. rebels), that change is possible. It isan invitation for them to come our of their limbo and seize the opportunity.

Q: Is it open to all?

A: No. It is not open to all but only to the marginalized and theunderrepresented

Allowing all individuals and groups, including those which nowdominate district elections, to have the same opportunity to participate in theparty-list elections would desecrate this lofty. Objective and mongrelize thesocial justice mechanism into an atrocious veneer for traditional politics(nose bleed!)

To make it open to all, without qualifications would not only weakenthe electoral chances of the marginalized and the underrepresented – it alsoprejudices them. To allow the non-marginalized and the overrepresented tovie under the party list system would not only dilute, but also prejudice thechance of the marginalized and underrepresented – contrary to the law’sintention to enhance it. It would gut the substance of the party-list system.Instead of generating hope, it would create a mirage. Instead of enabling the

marginalized, it would further weaken them and aggravate theirmarginalization.

Uphold Social Justice principle – to give those who have less life, more inlaw

Underground group – Rebels (p.27 3A notes)

Guidelines for screening party list participants (8)

The political party, sector, organization, or coalition must represent themarginalized and underrepresented sectors identified in Sec 5, RA7941.

Sec 5, RA7941 – “x x x the sectors shall include labor, peasant, fisherfolk,urban poor, indigenous cultural communities, elderly, handicapped, women,youth, veterans, overseas workers, and professionals.”

This enumeration is NOT exlusive

However, it demonstrates the clear intent of the law that NOT all sectors canbe represented under the party-list system.

While political parties may participate in the party-list system, thenmust comply with the declared statutory policy of enabling “Filipino citizensbelonging to the marginalized and underrepresented sectors x x x to beenelcted to the HOR.

They must show that they represent the interests of themarginalized and the underrepresented.




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Sec 5, RA 7941 – “Any organized group of persons may regilster as a party,organization, or coalition for purposes of the party-list system x x x”

Sec 7, Art IX-C, 1987 Const. – “No votes cast in favor of a political party,organization, or coalition shall be valid, except for those registered under theparty-list system as provided in this constitution.

Sec 8, Art IX-C, 1987 Const. – “Political parties or organizations or coalitionsregistered under the party list system shall not be represented in the voter’sregistration boards x x x”

Sec 5(1), Art VI, 1987 Const. – “The HOR shall be composed of x x x andthose who x x x shall be elected through a party list system of registerednational, regional, and sectoral parties or organizations.

The religious sector may not be represented in the party-list system orregistered as a political party.

Art IX-C Sec 2(5) – “The COMELEC shall exercise the following powers andfunctions x x x (5) Register x x x political parties, organizations x x x religiousdenomination shall not be registered.

Art VI, Sec 5(2) – “x x x from the labor, peasant urban poor x x x and suchother sectors as may be provided by law, except religious sector”

Sec 6(1), RA7941 – “The COMELEC may x x x refuse or cancel x x x theregistration of any national regional or sectoral party, organization orcoalition on any of the following grounds: (1) If it is a religious sect ordenomination, organization or association organized for religious purposes.

Ex: El Shaddai cannot register and participate in the party-list system

The prohibition is on any religious organization registering as a politicalparty. No prohibition against a priest running as a candidate. What isprohibited is the registration of a religious sect as a political party.

The party or organization must not be an adjunct of, or a project organized

by, or an entity funded or assisted by the government.It must be independent of the government

By the very nature of the party-list system, the party or organization must bea group of citizens, organized and operated by citizens.

The participation of the government or its officials in the affairs of a party-listcandidate is not only illegal and unfair to others, but also deleterious to theobjective of the law.

Ex: MAD – Mamamayan Ayaw sa Droga

The party or organization must not be disqualified under sec 6, RA7941:

Sec 6, RA 7941 – Ground for refusal and/or cancellation of registration:

1. It is a religious sector denomination, organization or association,organized for religious purposes;

2. It advocates violence or unlawful means to seek its goal;

3. It is a foreign party or organization;

4. It is receiving support from any foreign gov’t, foreigh political party,foundation, organization, whether directly or through any of its officers ormembers or indirectly through 3rd parties for partisan election purposes.

5. It violates or fails to comply with laws, rules or regulations relating toelections;

6. It declares untruthful statements in its petition;

7. It has ceased to exist for at least 1 year;

8. It fails to participate in the last 2 preceding elections, or fails to obtain atleast 2% of the votes cast under the party list system in the 2 precedingelections for the constituency in which it has registered.

The party must not only comply with the requirements of the law; itsnominees must likewise do so x x x

The nominee must also be qualified.

Sec 9, RA 7941 – Qualifications for party list nominees

(1) Natural-born citizen of the Philippines

(2) Registered voter

(3) Resident of the Philippines for a perioud of not less than 1 year

immediately preceding the day of the electon.(4) Able to read and write

(5) Bona fide member of the party or organization which he seeks torepresent for at least 90 days preceding the day of the election.

(6) Not only the candidate party or organization must represent marginalizedand underrepresented sectors; so also must its nominees.

(7)The nominee must also represent the marginalized and underrepresented

Surely, the interests of the youth cannot be fully represented by a retiree;neither can those of the urban poor or the working class by an individualist.




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While lacking a well-defined political constituency, the nominee mustlikewise be able to contribute to the formulation and enactment ofappropriate legislation that will benefit the nature of the whole.

4 inviolable parameters to determine the winners in a Party-list election

(As mandated by the Constitution and RA7941) "Bar Question! "

See VETERANS FEDERATION PARTY vs. COMELEC (October 6, 2000 EnBanc)

a. The twenty (20%) percent allocation - The combined member of allparty list congressmen shall not exceed 20% of the total membership of theHOR, including those elected under the party-list.

Art VI, Sec 5(2) – “The party-list representatives shall constitute 20% of thetotal number of representatives including those under the party-list.

b. The two (2%) percent threshold - Only those garnering a minimum of2% of the total valid votes cast for the party list system are qualified to havea seat in the HOR.

NOTE: The base is the total votes cast for the party-list and not the totalnumber of registered voters.

See RA 7941.

c. The three (3) seat limit - Each qualified part, regardless of the number ofvotes actually obtained, is entitled to a maximum of 3 seats – 1 qualifyingand 2 additional seats.

Rationale: To avoid domination/monopoly – will go against the purpose ofthe party-list system.

Proportional Representation - The additional seats to which a qualifiedparty is entitled to shall be computed in proportion to their total number ofvotes.

Q: To determine the total votes cast for the party-list system, should thevotes tallied to the disqualified candidates be deducted/excluded incomputing the 2% threshold?

A: Yes. The votes for the disqualified parties should be excluded.

(Ang Bagong Bayani OFW vs. COMELEC [June 25, 2003 En Banc])

In the case of Labo vs. COMELEC, reaffirmed in the case of Grego vs.COMELEC, the court declred that the votes case for an ineligible ordisqualified candidate cannot be considered stray, because this woulddisenfranchise the voters/majority; valid votes.

However, votes cast for a notoriously disqualified candidate may beconsidered stray and excluded from the canvass.

This does not apply to the party-list elections!

Because of the express rule in Sec 10, RA 7941 – “x x x that a vote cast fora party, sectoral organization or coalition not entitled to be voted for shall not

be counted x x x”The LABO doctrine applies only to SINGLE ELECTIVE POST/ELECTIONS(e.g. Mayor); In the party-list system, even the 2nd, 3 rd, etc... candidate mayget seats.

Concept and Bases of Congressional Oversight Functions

See MAKALINTAL vs. COMELEC

Q: What is the power of oversight?

A: Broadly defined, the power of oversight embraces all activities undertakenby Congress to enhance its understanding of and influence over theimplementation of legislation it has enacted. Clearly, oversight concernspost-enactment measures undertaken by Congress:

to monitor bureaucratic compliance with program objectives;to determine whether agencies are properly administered;to eliminate executive waste and dishonesty;to prevent executive usurpation of legislative authority; andto assess executive conformity with the congressional perception of publicinterestQ: What is/are the basis of oversight power of Congress? A: The power of oversight has been held to be (1) intrinsic in the grant oflegislative power itself and (2) integral to the checks and balances (3)inherent in a democratic system of government.

Q: what are the categories of congressional oversight functions? [SIS]

A: Three categories:Scrutiny – primary purpose is to determine economy and efficiency of theoperation of government activities.

Based primarily on the power of appropriation of congress as under theconstitution, the “power of the purse” belongs to the congress

Ex: Budget hearings – usual means of renewing policy and auditing the useof previous appropriation to ascertain whether they have been disbursed forpurposes authorized in an appropriation act.




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Power of confirmation – [through COA,] provides congress an opportunity tofind out whether the nominee possesses the necessary qualifications,integrity and probity required for all public servants.

Congress may request information and report from the other branches ofgovernment. It can give recommendations / pass resolutions forconsideration of the agency involved.Congressional Investigation – a moreintense digging of facts.

This is an essential and appropriate auxiliary to the legislative functions,even in the absence of an express provision in the Constitution.

Sec 21 Art VI (in aid of legislation)

Sec 22 Art VI (Question hour)

Legislative Supervision – third and most encompassing form of oversightpower.

“Supervision” connotes a continuing and informed awareness on the part ofcongressional committee regarding executive operations in a givenadministrative area.

Allows congress to the exercise of delegated law-making authority andpermits congress to retain that part of delegated authority.

Ex: veto power of Congress.

Power to create public office / administrative agency – congress has anadditional power to supervise - properly implemented congress has reviewpowers over these public offices / administrative agencies.

Ex: GSIS.

Q: What is legislative veto?

A: It is the power of the congress to disapprove a subordinate law, ru les andregulations promulgated/enacted by the executive branch pursuant to a

delegation of authority by Congress.Immunities and privileges of members of Congress

Sec 11, Article VI – “ A senator of member of the HOR shall , in all offenses

punishable by not more than 6 years imprisonment, be privileged from arrestwhile the congress is in session. No member shall be questioned nor be heldliable in any other place for any speech or debate in Congress or in anycommittee thereof .”

3 Privileges:

(1) Privilege from Arrest

(2) Freedom of speech and debate(3) Freedom from search (see Article 145, RPC)Privilege from Arrest

Not absolute!

Limitations: (1) Congress must be in session

(2) The offense must be one punishable by imprisonment not exceeding 6years.

“In session”

does not refer to the day to day session

refers to the session from the opening to the final/formal adjournment ofCongress

Art VI, Sec 15 – “the Congress shall convene once every year on the FourthMonday of July for its regular session, unless a different date is fixed byLaw, and shall continue to be in session for such number of days as it maydetermine until thirty days before the opening of its next regular session,exclusive of Saturdays, Sundays, and legal holidays x x x “

Q: After 15 days of continuous session, congress adjourned. Can this bedone?

A: YES. Congress has the discretion under Art VI, Sec 15. It is allowed toremain in session provided only that 30 days before the opening of the nextsession, it shall adjourn (compulsory adjournment).

The opening of the session is also the time the President delivers his STATEOF THE NATION ADDRESS (SONA) – part of the informing power of thePresident (Art VII, Sec 23)

Art VII, Sec 23 – “The president shall address the Congress at the openingof its regular session x x x”

This is a deviation from the 1935 constitution, under which the opening ofthe regular session is every 4th Monday of January and the duration of thesession is for a fixed period of 100 days. It was patterned after the AmericanConstitution.

Freedom of Speech and Debate

Requisites:

(1) The speech or debate must be made in Congress or in anycommittee thereof.

(2) The congress must be in session.




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Q: In a TV interview, a congressman maligns someone. Can he invoke hisfreedom of speech?

A. NO. It was not made in congress or any of it s committee.

Q: In his privileged speech, a congressman made remarks against A. Can Asue him for defamation?

A: NO. It is covered by the immunity.

Q: What is A’s remedy?

A: Ask the house to punish the congressman.

“In any other place” – means - this includes the courts!

Statement made in Congress is a form of privileged communication.

This is a valid defense of Slander or Libel!

Borjal vs. CA: There are 2 kinds of Privileged communication:

Absolutely priv ileged

absolutely not actionable even if the author is in bad faithEx: Freedom of speech and debate of members of Congress.

Qualifiedly privileged

Not actionable unless the author acted in bad faith.

This does NOT include Congress Itself!

Osme!a vs. Pendatun: The Senate expelled Senator Osme#a from theSenate when he maligned the President in his speech.

SC: The Senate’s act is valid. Congress can punish their members [Art VI,Secc 16(3)]. The freedom of speech and debate cannot be invoked inCongress itself. The constitution says, “in any other place”.

People vs. Jalosjos: To allow Jalosjos to attend congressional session willvirtually make him a free man; this would be a mockery of the correctionalsystem.

Immunity of Members of the Congressarises from a constitutional provisiongranted in a restrictive sensecannot be extended by Intendment

Implication

Equitable considerations

Q: During pendency of his appeal from conviction of RTC, should he beallowed to post bail?

A. NO. Evidence of guild is strong; should wait for decision on appeal insidethe penitentiary.

1987 Constitution says…

Art III, Sec 13 “All persons, except those charged with offenses punishableby reclusion perpetua, when the evidence of guilt is strong, shall, beforeconviction, be bailable by sufficient sureties, or be released on recognizanceas may be provided by law. x x x”

Rules of Court says…

Rule 114 Sec 4 – Bail, a matter of right; exception:

All persons in custody shall be admitted to bail as a matter of right, withsufficient sureties, or released on recognizance as prescribed by law or thisrule.

before / after conviction by the MTC; and

before conviction by RTC of an offense not punishable by death, R.P, or lifeimprisonment.

Rule 114 Sec 5 – Bail, when discretionary

Upon conviction by the RTC of an offense NOT punishable by death, RP, orLI, admission to bail is discretionary. x x

Therefore:

Matter or Right – before conviction, punishable by penalty lower thanreclusion perpetua

Exception: charged with offense punishable by RP or death.Matterof Discretion – before conviction punishable by penalty of reclusion perpetuaor higher when the evidence of guilt is strong, there will be a hearing todetermine whether evidence of guilt is strong.

" After conviction, go to Rule 114 sections 4 and 5.

Power to Conduct Investigations and Inquiries

Sec 21, Art VI – “The senate or the House of Representatives or any of itsrespective committees may conduct inquiries in aid of legislation inaccordance with its duly published rules of procedure. The rights of personsappearing in or affected by such inquiries shall be respected.” Nature of thepower to conduct investigations and inquiries

non-legislative but integral in the grant of Legislative power




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It is investigative.Arnault vs. Nazareno: In the 1935 Constitution, there is noexpress provision regarding inquiries in aid of legislation. However, it isintrinsic – to conduct inquiries in aid of legislation. Therefore, even withoutsuch provision, this power is present.Q: Is the power absolute?

A: NO! Section 21 provides for the following limitations:

It must be in aid of legislation.It must be made in accordance with duly published rules of procedures

The rights of persons appearing in, or affected by such inquiries shall berespected.

! The right against self incrimination (Art III sec 17) may be invoked.

“In aid of legislation”

Bengzon Jr vs. Senate Blue Ribbon Committee

# Senator Enrile made a privileged speech on the alleged takeover of theSOLOIL Inc. by Ricardo Lopa, a relative of President Auino, and asked theSenate to “look into the possible violation of the law, particularly with regard

to RA3019, the “Anti-Graft and Corrupt Practices Act”. The matter wasreferred to the Senate Blue Ribbon Committee.

# Not an inquiry for inquiry’s sake.

SC: This cannot be allowed. Enrile’s speech had no suggestion ofcontemplated legislation. The purpose of inquiry was to find out whetherRicardo Copa violated the law. Thus, there is not intended legislationinvolved.

Q: Is this subject to Judicial Review?

A: General Rule: NO! It is a poli tical question.

Exception: When it is tainted with grave abuse of discretionamounting to lack or excess or jurisdiction. In view of the expanded power ofthe Courts, the SC can inquire whether the inquiry is in accordance with thelimitations under the constitution.

Q: What is the executive privilege?

A: It is the power of the government (the President or Executive Secretaryacting in behalf of the president) to withhold information from the public, thecouts and the Congress.

unless the question is asked, you cannot invoke this privilege

It must be invoked (not implied) expressly; must not be a blanket invocation.

It is attached to information, and not the person asked.

Q: What are the varieties of Executive privilege?

A: (1) State Secrets Privilege – Information is of such nature that itsdisclosure would subvert crucial military or diplomatic objective.

Informer’s Privilege – the privilege of the Government not to disclose theidentity of persons who furnish information of violations of law to officerscharged with the enforcement of that law.

Generic privilege for internal deliberations – attached to intra-governmentaldocuments reflecting advisory opinions, recommendations, and deliberationscomprising part of a process by which governmental decisions and policiesare formulated.

Power to Conduct a Question Hour

Art VI, Sec 22 – “The heads of departments may upon their own initiative,

with the consent of the President, or upon the request of either house, as therules of each house shall provide, appear before and be heard by suchhouse on any matter pertaining to their departments x x x”

2 ways to initiate a question hour:

1. (1) Own initiative, with the consent of the President

2. (2) Upon request of either house.Q: What is Question Hour?

A: It is a period of conf rontation initiated by the parliament to hold the primeminister and other ministers accountable for their acts and the operation ofthe government. (definition borrowed from a parliamentary government).

Senate of the Philippines vs Ermita

Sections 21 and 22, therefore, while closely related and complementary toeach other, should not be considered as pertaining to the same power ofCongress.

Section 21 Section 22

- relates to the power to conductinquiries in aid of legislation; the aimof which is to elicit information thatmay be used for legislation.

- pertains to the power to conduct aquestions hour; the aim of which is toobtain information in the pursuit ofthe congress’ oversight function

- co-extensive with the power tolegislate

- in pursuit of Congress’ oversightfunction

- attendance is meant to be - attendance is meant to be




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x 12

compulsory* discretionary

- grounded on the necessity ofinformation in the legislative process(the power of inquiry being co-extensive with the power tolegislate)

- congress merely seeks to beinformed on how department headsare implementing the statutes whichit has issued.

*non-appearance will impair the work of Congress and violate Section 7 ofthe Bill of Rights (right to information in matters of public concern – throughtheir duly elected representatives in Congress)

Q: May members of Cabinet and other top executive officials validly refuseto appear before congressional inquiries without the consent of the Presidentby invoking EO 464 (prohibiting members of the cabinet and other Executiveofficials from appearing in Congressional Inquiries) promulgated by thePresident?

A: If the requirement then to secure presidential consent under EO 464 islimited only to appearances in the Question hour, then it is VALID. For underSection 22, Article VI of the Constitution, the appearance of department

heads in question hour is discretionary on their part. However, this cannot beapplied to department heads in inquiries in aid of legislation. Congress is notbound in such instances to respect the refusal of the department heads toappear in such inquiry, unless a valid claim of privilege is subsequentlymade, either by the President himself, or by the Executive secretary (Senateof the Philippines vs. Ermita)." A claim of privilege, being a claim ofexemption from an obligation to disclose information must be clearlyasserted. Absent a statement of the specific basis of a claim of executiveprivilege, there is no way of determining whether it falls under one of thetraditional privileges, whether given the circumstances in which it is made. Itshould be respected.

Legislative Contempt – The power to punish for Contempt

Nature of the power to punish for contempt

General Rule: The power is Judicial in nature. It is an inherent power of thecourt.

Exeption: When exercised by the Congress or any of its committees whenconducting inquiries in aid of legislation (legislative contempt), one can beheld in detention/sent to prision.

Q: How long can one be held in detention for legislative contempt?

A: For as long as he refuses to cooperate, it is not l imited to the duration ofthe session of Congress. Thus, a person holds the key to his own freedom.(Arnault vs. Nazareno)

Q: Does the pardoning power of the president apply to cases of LegislativeContempt?

A: NO. It is a limitation on the president’s power to pardon by virtue of thedoctrine of separation of powers.

Bodies Attached To Congress:

Commission on Appointments (Art. VI, Sec 18)

Electoral Tribunals (Art VI, Sec 17)

Commission on Appointments

Section 18, Art VI – “There shall be a commission on Appointmentsconsisting of the President of the Senate as ex officio chairman, twelvesenators and twelve members of the House of Representatives, elected byeach House on the basis of proportional representation from the political parties and parties and parties or organizations registered under the party-

list system represented therein. The chairman of the Commission shall notvote, except in case of a tie. The commission shall act on all appointmentssubmitted to it within thirty session days of the Congress from their

submission. The commission shall rule by a majority vote of all themembers.”

Organization

Q: How many members? A: 25 # Senate President – ex officio chairman

# 12 Senators

# 12 Representatives (from the House of Representatives)

Q: How are the 24 members chosen?

A: based on proportional representation from political parties (inc luding partylist) having membership in the senate or House of representatives.

Example:Senate composition:

K4 = 10KNP = 8LOP = 4LAKAS = 2Formula to determine seats per party in the Commission on

Appointments :# of senators of party

Total # of senators




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12 is the # of CoA seats

Simply put, it is the # of senators of a Party DIVIDED by 2

Follow the same formula for HOR component – just use the # ofcongressmen.

Therefore:

K4 = 5KNP = 4LOP = 2LAKAS = 1

Q: What if there are decimal places?

A: Disregard (drop) the fraction. Otherwise, rounding off would violate therule on proportional representation! Although some seats would not be filled,it is not mandatory that all seats be filled up. What is necessary is that therebe a quorum (Guingona vs. Gonzales)Q: What is main function of theCommission on Appointments?

A: To act on Pres idential Appointments (checks-and-balances)Q: When can CoA meet?

A: Only when the congress is in Session. (Art VI, Sec 19. 2nd sentence) –“The commission on Appointments shall meet only while the Congress is insession at the call of its chairman and a majority of all its members, to

discharge such powers and functions as are herein conferred upon it”

- Thus, ad interim appointments are allowed (see Section 16, 2nd par. Art VII)

Electoral Tribunals

Section 17, Art VI – “The Senate and the House of Representatives shalleach have an Electoral Tribunal which shall be the sole judge of all contestsrelating to the election, returns, and qualifications of their respective

members. Each Electoral Tribunal shall be composed of nine members.Three of whom shall be Justices of the Supreme Court to be designated by

the Chief Justice, and the remaining six shall be members of the Senate orthe House of Representatives, as the case may be, who shall be chosen onthe basis of proportional representation from the political parties and the parties or organizations registered under the party-list system representedtherein. The senior Justice in the Electoral Tribunal shall be its chairman. ”

Two Electoral Tribunals

(1) Senate Electoral Tribunal (SET)(2) House of Representatives Electoral Tribunal (HRET)

Membership – 9 membersJudicial Component – 3 Supreme Court Justices; the most senior is thechairman (designated by the CJ)Legislative Component – 6 senators / congressmen chosen on the basis ofproportional representation

Bondoc vs. Pineda

FACTS: Congressman Camasura was a member of the HRET. There wasan electoral contest involving his party-mate and Bondoc. The partyinstructed Camasura to vote for his party-mate. However, Camasura cast aconscience vote in Bondoc’s favor. Thus, the party expelled Camasura fromHRET on the grounds of “disloyalty to the party” and “breach of partydiscipline”.HELD: The expulsion is VOID. SET/HRET members are entitledto security of tenure to ensure their impartiality and independence. As judge-members of the tribunal, they must be non-partisan; they must dischargetheir functions with complete detachment; Independence and impartiality,even from the party to which they belong. Thus, “disloyalty to party” and“breach of party discipline” are not valid grounds for expelling a tribunal’smember. The members are not supposed to vote along party lines – onceappointed, the house/senate leadership should not interfere with the tribunal. Although they are attached to congress, yet they are independent ofCongress.

Q: Can they meet when Congress is not in session?

A: YES. Unlike the Commission on Appointments, they shall meet inaccordance with their rules, regardless of whether congress is in session!Q:From the decision of SET or HRET, is there an appeal?

A: NO. Sec 17 of Article VI provides that the SET/HRET is the “sole judge ofall contests x x x”. Hence, from its decision, there is no appeal. Appeal is nota constitutional but merely a statutory right.

Q: Is there any remedy from its decision?

A: YES. A spec ial civ il action (an original action – not a mode of appeal) forcertiorari under Rule 65 may be filed. This is based on grave abuse ofdiscretion amounting to lack or excess of jurisdiction. This will be filed beforethe SC.

[The other form of Certiorari is Rule 45, which is a mode of appealon pure questions of law. This is a mode of appeal unlike the Special Civilaction for Certiorari under Rule 65]

$SET/HRET’s jurisdiction is limited to “contests relating to the election x x xof their respective members”




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…but senate may propose & concurwith amendments.

" Amendment by substitution isallowed.

Romualdez-Marcos vs. COMELEC

FACTS: In the 1995 elections, Imelda ran for HOR. A disqualification casewas filed against her on account of her residence. The case was notresolved before the election. Imelda won the election. However, she was notproclaimed. Imelda now questions the COMELEC’s jurisdiction over thecase.

HELD: The COMELEC still has jurisdiction. HRET’s jurisdiction as the sole judge of all contests relating to the elections, etc..of members of congressbegins only after a candidate has become a member of the HOR. SinceImelda has not yet been proclaimed, she is not yet a member of the HOR.Thus, COMELEC retains jurisdiction. (see RA6646, Sec 6, Electoral ReformLaw of 1987)

Guerrero vs. COMELEC

FACTS: Rudy Fariñas of Ilocos Norte ran for Congressman. Adisqualification case was filed against him, which was not resolved beforethe elections. He won and was proclaimed. COMELEC dismissed thepending disqualification case against Fariñas. This was questioned byGuerrero on the ground that HRET has jurisdiction only if there is a validproclamation of the winning candidate. Thus, if a candidate does not ratifythe statutory requirements, his subsequent proclamation is void and thus,COMELEC still has jurisdiction.

HELD: The dismissal (of the case) is incorrect. This is a recognition of the jurisdictional boundaries between COMELEC and HRET. In an electoralcontest where the validity of the proclamation of a winning candidate whohas taken his oath of office and assumed his post as congressman is raised,the issue is best addressed to the HRET. This avoids duplicity ofproceedings and a dash of jurisdiction between constitutional bodies.

[Thus, once a winning candidate has been proclaimed, taken his oath ofoffice and assumed office as a member of the HOR, the COMELEC’s jurisdiction over election contests relating to his election returns and

qualifications ends, and the HRET’s own jurisdiction begins.]The Legislative

Process

Filing of the Bill

General Rule: A bill may be introduced and may originate either from theSenate or the HOR.

Exceptions: Bills that must originate exclusively with the HOR [APRIL]

Appropriations bill

Private bills

Revenue or Tariff bills

Bills Increasing the Public Debt

Bills of Local ApplicationSource:

Article VI, section 24 – “ All appropriate, revenue or tariff bills, billsauthorizing increase of public debt, bills of local application, and private billsshall originate exclusively in the House of Representatives, but the senatemay propose or concur with amendments.”

Tolentino vs. Secretary of Finance EVAT is a revenue bill. It intends toraise income for the gov’t.

FACTS: There were 2 versions of the EVAT – the HOR and the Senateversion. The HOR bill was first filed and the Senate suspended its owndeliberations until the HOR version was sent to the Senate. Then, the senate

passed its own version. Both versions were sent to the BicameralConference Committee. What eventually became the EVAL law was thesenate’s version.

HELD: It is not the law, but the revenue bill that is required to originateexclusively in the HOR. What the constitution simply means is that theINITIATIVE for filing revenue, tariff bills, etc…must come from the HOR onthe theory that since the HOR members are elected from the districts, theycan be expected to be more sensitive to the local needs and problems. A billoriginating in the HOR may undergo such extensive changes in the Senate.The result may be a rewriting of the whole. To insist that the revenue statutemust be substantially the same as the house bill would deny the senate’spower to concur and propose amendments. This would violate the co-equality of the legislative power between the HOR and the Senate. Thus, the

power of the senate to propose amendments includes the power to proposeits own version. Amendments may be amendments by substitution.

2 rules:

1) One-subject-one-title rule

Sec 26(1), Art VI – “Every bill passed by the Congress shall embrace only 1subject, which shall be expressed in the title thereof.”

Objectives (De Guzman Jr. vs. COMELEC)

To prevent hodge-podge or log-rolling legislation;




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To prevent surprise or fraud upon the legislature by means of provisions inbills of which the title gives no information and which might thus beoverlooked and carelessly and unintentionally adopted; and

To fairly appraise the people, through such publication of legislativeproceedings as usually made, of the subjects of legislation that are beingconsidered, in order that they may have the opportunity of being heard

thereon by petition or otherwise, if they shall so desire.

In general, the rule seeks to prevent riders – provision which is totallyunrelated to the subject matter of the legislation being considered and maybe the subject of a separate legislation.

This rule is interpreted liberally!

Philippine Judges Association vs. Prado

FACTS: RA7354 is entitled, “law creating the Philippine Postal Corporation”.In section 35 (Repealing clause), the Judiciary’s franking privilege waswithdrawn. Philippine Judges Association argues that Section 35 is notexpressed in the title of the law, and also the title does not reflect thepurpose of withdrawing said franking privilege.

HELD: The bill’s title is not required to be an index to the body of the act, orto be comprehensive as to cover every single detail in the act. If the titlefairly indicates the general subject and reasonable covers all the provisionsof the act, and is not calculated to mislead the legislature or the people,there is sufficient compliance with the constitutional requirement.

[Here, when a statute repeals a former law, such repeal is the effect – notthe subject of the law and it is the subject and not the effect that is requiredto be briefly expressed in the title.]

Tobias vs. Abalos

FACTS: San Juan and Mandaluyong used to be municipalities belonging toone (1) legislative district, with one congressman. RA7675 was enacted

entitled, “converting Mandaluyong into a highly urbanized city”. Section 49 ofsaid law creates a separate legislative district for Mandaluyong. The peopleapproved the law in a plebiscite. Tobias now questions the legality of the lawon the ground that it has 2 unrelated subjects: (1) conversion ofMandaluyong into a highly urbanized city, and (2) creation of a separatelegislative district for Mandaluyong.

HELD: The creation of a separate legislative district for Mandaluyong is NOTa subject separate from its conversion into a highly urbanized city. Instead, itis a natural and logical consequence of such conversion. This is because of Article VI, Section 5(3), which provides that “each city with a populat ion of a tleast 250,000 or each province shall have at least one (1) representative.”

"This, for as long as various provisions are germane to the subject matter –which is expressed in the title – the rule is complied with.

2) Three readings on three separate days rule

Sec 26(2), Art VI – “No bill passed by either House shall become a lawunless it has passed three readings on separate days, and printed copied

thereof in its final form have been distributed to its members three daysbefore its passage, except when the President certifies to the necessity of itsimmediate enactment to meet a public calamity or emergency. Upon the lastreading of a bill, no amendment thereto shall be allowed, and the votethereon shall be taken immediately thereafter, and the yeas and naysentered in the Journal.”

General Rule: Each bill must undergo 3 separate readings on 3 separatedays. (one in Senate, one in HOR = 6 days/readings all-in-a ll)

First Reading: the bill’s title is read; it is assigned a number, andthen referred to the appropriate committee. . NNo deliberations yet In the committee to which the bill was referred to, it may die anatural death if said committee sits on it. If the members of the

committee endorse the bill to the plenary, it will be calendared for2nd reading.

Second Reading: The bill is sent back to the plenary.NOTE: In the plenary, it will be discussed in its entirety;

there will be sponsorship speech, interpellations, deliberations;amendments may also be introduced.

Third Reading: Requirement: 3 days before the scheduled 3rd reading. Printed copies of the bill will have to be distributed to eachmember of the house. Here, there are no more deliberations,discussions, or amendments. There is only voting; the yeas andnays must be entered in the journal.

Exception: When the President certifies to the necessity of its immediateenactment to meet a public calamity or emergency.

Tolentino vs. Secretary of Finance

When the president certifies as to the necessity of the Bill’s immediateenactment, it need not undergo 3 readings on 3 separate days and printedcopies of the Bill need not be distributed to the members 3 days before the3rd reading.

" What constitutes a public calamity or emergency is a political questioninto which the courts cannot interfere.




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While the sufficiency of the factual basis of the suspension of the writ ofHabeas Corpus or declaration of martial law is subject to Judicial reviewbecause basic rights of individuals may be at hazard, the factual basis ofpresidential certification of bills, which involves doing away with proceduralrequirements designed to insure that bill are duly considered by member ofcongress, certainly should elicit a different standard of review.

" After 3 readings, the bill will be sent to the other house where it willundergo the same cumbersome process.

" If both houses have different versions of the Bill, said versions will be sentto the Bicameral Conference Committee for reconciliation.

BICAMERAL CONFERENCE COMMITTEE (Sec 1, Art VI – BicameralCongress)

Q: Is this mentioned in the Constitution?

A: NO! But it can be inferred from:

Power of each house of Congress to have rules of proceedings under Art VI,

Section 16(3) – “Each house may determine the rules of its proceedings x x x” ; and

The fact that we have a bicameral Congress – Art VI, Sec 1 – “Thelegislative power shall be vested in the Congress x x x which shall consist ofa senate and a HoR.”

Nature and Functions of the Bicameral Conference Committee

Source: Philippine Wages Association vs. Prado

Primarily, it is a mechanism for compromising differences between thesenate and the HoR; this is because we have a bicameral Congress.

It is capable of producing unexpected results which can even go beyond its

mandate.Referred to as the “3rd house” of Congress – not correct under ourconstitution, because there are only two houses.

See Arroyo vs. De Venecia

" Referral back to the Senate and the HoR – from the bicameral conferencecommittee, the consolidated bill will be sent back to each House.

" There, the consolidated bill will be subject to voting; no more readings

If the yeas prevail over the nays – the bill is passed and will be sent to theSenate Predient and the HoR speaker for signing.

If the nays prevail over the yeas – another bicameral conference committeewill be created until an acceptable version of the bill is created; the court didnot say that the bill is killed.

Enrolled Bill Doctrine

Q: What is the enrolled bill doctrine?

A: Once a b ill has become an enrolled bill, it becomes conclusive upon thecourts as to its enactment*, so that the courts will not inquire into whetherthat Bill was regularly enacted or not.

* It is the enactment only and NOT its constitutionality or validity, which issubject to judicial review.

Q: What is an enrolled bill?

A: It is a bill that contains the signatures of the respective secretaries of bothHouses of Congress, of the House Speaker and of the Senate President;and is to be sent to the President for his signature.

In other words, the following are the signatories to the enrolled bill :Secretary of the senate and of the! ! speaker

Senate president

Q: What is the reason for the doctrine?

A: Separation of Powers. The courts should give due respect because theenrolled bill contains the signatures of the officers of the co-equal branchesof Government.

Journal Keeping Requirement

Sec 16(4), Art VI – “Each house shall keep a Journal of its proceedings and from time to time publish the same, excepting such parts as may, in its judgment, affect national security x x x”

Q: Between the enrolled bill and the Journal, which prevails?

A: General Rule : Enrolled bill p revails

Exception: Journal prevails as to the matters required by law to beentered into the Journal. They are regarded as conclusive:

The yeas and nays on the 3 rd and final reading

Art VI. Sec 26(2) – “Upon the last reading of a bill x x x the vote thereon shallbe taken immediately thereafter, and the yeas and nays entered in theJournal.”




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The yeas and nays on any question at the request of 1/5 of the memberspresent

Art VI, Sec 16(4) – “Each house shall keep a journal of its proceedings x x xand the yeas and nays on any question shall, at the request of 1/5 of themembers present, be entered in the journal.”

The yeas and nays upon re-passing a bill over the President’s veto. Art VI Sec 27(1) – “In such cases, the votes of each house shall bedetermined by yeas or nays, and the names of the members voting for oragainst shall be entered in its journal.”

The president’s objection to a bill he had vetoed.

Art VI Sec 27(1) – “every bill passed by Congress shall, before it becomes alaw, be presented to the President x x x otherwise, he shall veto it and returnthe same with his objections to the House where it originated, which shall

enter the objections at large in its journal x x x ”

Astorga vs. Villegas

FACTS: A bill of local application was filed in the ! and was there passed

on 3rd reading without amendments. Forthwith, the bill was sent to theSenate for its concurrence. It was approved with minor amendmentssuggested by Senator Roxas, that instead of the City Engineer, it be thePresident Protempore of the Municipal Board who should succeed the ViceMayor in case of the latter’s incapacity to act as Mayor. However, on secondreading, substantial amendments to this were introduced by SenatorTolentino. These were approved in toto by Senate. The amendmentrecommended by Senator Roxas does not appear in the Journal of theSenate proceedings as having been acted upon. When the Secretary of theSenate sent a letter to the ! that the House Bill No. 9266 had been passedby the Senate with amendments, he attached a certification of theamendment, which were the ones actually approved by the senate. The ! thereafter signified its approval of the bill and caused copies thereof to be

printed. The printed copies were then certified and attested by thesecretaries of the ! and the senate and the speaker of the ! and theSenate president. When the printed copies were sent to the President, heaffixed his signature thereto by was of approval. The bill became R.A. 4065.However, Senator Tolentino issued a press statement that the bill signedinto law by the President was the wrong version. Consequently, the SenatePresident withdrew his signature.

HELD: The court went beyond the enrolled bill and looked into the Journal todetermine whether there’s legal insertion or not.

Enrolled bill to the President - Last stage

From Congress, the bill will be sent to the President.

Q: How many options does the president have? A: 3 options:

(1) President approves the bill # bill becomes a law

(2) President vetoes the bill # bill does not become a law

(3) President does not do anything (inaction) # automatically becomes a lawthirty (30) days after receipt of the bill.

First option: President approves the Bill

Sec 27 (1), Art VI – “Every bill passed by Congress shall, before it becomesa law, be presented to the President. If he approves the same, he shall signit xxx ”

Second option: President vetoes the bill

Sec 27 (1), Art VI – “Every bill passed by Congress shall, before it becomesa law, be presented to the President x x x otherwise, he shall veto it andreturn the same with his objections to the House where it originated. ”

Requirements:

Sent the bill back to Congress,

Together with his objections (veto message)

Q: Can Congress overthrow the veto (“repass the law”)?

A: YES! With a 2/3 vote as provided under Sec 27(1) Art VI – “If after such

reconsideration, 2/3 of all members of such House agree to pass the bill, itshall be sent, together with the objections to the other house by which it shalllikewise be considered, and if approved by 2/3 of all members of that house,it shall become a law.”

KINDS OF VETO

General Veto – Art VI, Sec 27, par 1

Item or Line Veto – Art VI, Sec 27, par 2 “The President shall have the power to veto any particular item or items in an appropriation, revenue, or

tariff bill, but the veto shall not affect the item or items to which he does notobject.”

General Rule: President may not veto a provision without vetoing the entirebill.

The rule is all or nothing; selective veto is not allowed.




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The president may not veto a bill without vetoing the entire bill. Theexecutive must veto a bill in its entirety or not at all. He cannot be an editorcrossing our provisions which she dislikes. (Bengzon vs. Drilon)

Exceptions: Selective veto is allowed in 3 kinds o bill (ART)

Appropriation bi lls

Revenue Bills

Tariff Bills

Grounds for Vetoing Ordinance by the Chief Executive

Sec. 55 of LGC par. A [UP]

Ultra-vires/

prejudicial to public welfare

Sec 55 of LGC par. B: on Item/line veto: [PAL]

Appropriation Ordinance

Adopting a loca l development plan

Ordinance Authorizing Payment of money/creating Liability

Q: Under the LGC, can Punong-Baranggay veto an ordinance?

A: NO. He is part of the ordinance-making (or legislative process) body asthe presiding officer of the sessions of Sangguniang Baranggay.

Q: Do Local Chief Executives have veto power?

A: NO.

Q: How about a Governor?

A: Yes. There is a vice-governor.

Q: How about a Mayor? A. Yes. There is vice-mayor.

Chief Executive of Baranggay

Chief Executive

Sangguniang Baranggay, presiding officer

Lupong Tagapamayapa

Can carry firearms

Q: Is the Chief executive of Baranggay an agent, or a person-in-authority?

A: Person-in-authority (recall Crim Book II – can be subject to direct assault )

N.B.: Policeman – agent of person-in-authority

" Sec. 388 LGC

Punong Baranggay

Sangguniang Baranggay members Persons-in-authority

Lupong taga-pamayapa

Doctrine of Inappropriate ProvisionsProvisions in an appropriation bill must relate to some particular provision

therein (see Art VI, Sec 25(2)). If it does not, it becomes an inappropriateprovision and will be treated as an item. Thus, it can be subject to the itemveto (Gonzales vs. Macaraig)

Gonzales vs. Macaraig

FACTS: the General Appropriations Bill contained a provision prohibiting thePresident from augmenting the funds of one department from the other.President Aquino vetoed that provision. Congress argued that what shevetoed was a provision, not an item. Thus, she effectively vetoed the entirebill since the item veto refers to items and not to provisions.

HELD: The Court sustained the validity of the exercise by the President ofher veto power, invoking the doctrine of inappropriate provision.Section 25,par 2, Art VI – “No provision or enactment shall be embraced in the generalappropriations bill, unless it relates specifically to some particularappropriation therein. Any such provision or enactment shall be limited in itsoperation to the appropriation to which it relates.”

Q: May the President veto a LAW? A: NO. What the president may validly veto is ONLY a BILL and neither theprovisions of LAW 35 years before his term nor a final and executory judgment of the Supreme Court . (Bengzon vs. Drilon)

Item vs. Provision in an appropriation bill

" An item is a specific appropriation of money, not some general provisionof law that happens to be in an appropriation bill.

Third option: President does not do anything (inaction)




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Sec 27 (1), Art VI [last sentence] – “ x x x The president shall communicatehis veto of any bill to the House where it originated within thirty days after theate of receipt thereof; otherwise, it shall become a law as if he hadsigned it .”

Q: Is ‘pocket veto’ valid or practiced in our jurisdiction?

A: NO. There is not such thing as ‘pocket veto’ in the Philippines. Unlike inthe US – if within 10 days, the president fails to act on the Bill and Congressadjourns, the bill does not become a law. In our jurisdiction, the billautomatically becomes a law if the President does not act within 30 daysafter receipt of the Bill.

Example of Bills which lapsed into law by the President’s inaction:

Bar Flunker’s Act – President Quirino

Changing the name of Manila Int’l Airport to Ninoy Aquino Int’l Airport –President Aquino

Q: What if the President does not veto the inappropriate item?

A: It becomes a law/ rider which may be a separate subject of legislation.

Doctrine of Qualified Political Agency (Alter Ego Doctrine)

Members of the Cabinet are considered acts/decisions of the PresidentUNLESS reprobated by the latter.

Members of the Cabinet are considered alter ego of he President.

EXECUTIVE DEPARTMENT

EXECUTIVE POWER

ARTICLE VII, Sec. 1: “The execut ive power shall be vested in the Presidentof the Philippines.”

Q: What power belongs to the President?

A: Power of the Sword. (Power of the Purse belongs to the Congress.)

FAITHFUL EXECUTION CLAUSE

ARTICLE VII, Sec. 17, 2nd sentence: “xxx he shall ensure that the laws befaithfully executed.”

QUALIFICATIONS OF PRESIDENT – ARTICLE VII, Sec. 2

(1) natural-born citizen(2) reg istered voter(3) able to read and write

(4) at least 40 years of age on the day of the election(5) resident of the Philippines for at least 10 years immediately precedingthe election- Enumeration is exclusive!. The Constitution specifically provided that theCongress cannot add nor subtract from the list.

TERM OF OFFICE OF THE PRESIDENT – ARTICLE VII, Sec. 4

- 6 years, to begin at noon of June 30 next following the day of the electionand to end at noon of the same date 6 years thereafter.- no re-election; regardless of whether or not President finished his term.- “The President shall not be eligible for any re-election.” (Sec. 4)

QUALIFICATIONS AND TERM OF OFFICE OF THE VICE PRESIDENT

- same as the President

ARTICLE VII, Sec. 3, 1st par. – “There shall be a Vice President who shallhave the same qualifications and term of office xxx as the President."

- may be re-elected once!

ARTICLE VII, Sec. 3, 2

nd

par. – “No Vice President shall serve for more thantwo successive terms.”

- no longer an idle official

ARTICLE VII , Sec. 3, 2nd par. – “The vice President may be appointed as aMember of the Cabinet. Such appointment requires no confirmation. ”

PRESIDENTIAL SUCCESSION

ARTICLE VII , Sec 8 – “In case of death, permanent disability, removal fromoffice or resignation of the President, the Vice President shall become thePresident to serve the unexpired term.”4 INSTANCES:

(1) Death

(2) Permanent disability

(3) Removal- The President can only be removed by means of impeachment.

- ARTICLE XI, Sec. 2 : the list of impeachable officer is exclusive!

(1) President(2) Vice President(3) Members of the Supreme Court(4) Members of the Constitutional Commission(5) Ombudsman




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- Hence, the provision in the law creating the Sandiganbayan(1980) is already doubtful! (The law creating Sandiganbayan provides thatSB Justices may only be removed by impeachment.)

- Grounds:

(a) culpable violation of the Consitution(b) treason(c) bribery(d) graft and corruption(e) high crimes(f) betrayal of public trust

Q: Was Estrada impeached?

A: Yes!

Q: But was he removed through impeachment?

A: No! (remember, a v ice president can only be removed by impeachment)

(4) Resignation

Estrada vs. Desierto

(Did Erap resign?)

- Elements of Resignation

(a) there must be an intent to resign, which is coupled with:

(b) act of relinquishment

- Form of Resignation: the validity of a resignation is not governedby any formal requirement as to form – it can be oral or written; express orimplied as long as the resignation is clear, it must be given effect.

- TOTALITY OF CIRCUMSTANCES TEST AND CONSTRUCTIVERESIGNATION – Estrada did not write any formal letter of resignation before

leaving Malacanang. Thus, whether or not he resigned is to be determinedfrom his acts and omissions before, during, and after January 20,2001 or bythe totality of prior, contemporaneous and posterior facts and circumstantialevidence bearing a material relevance on the issue using this test, hisresignation cannot be doubted. In his final statement, he (a) acknowledged Arroyo’s oath-taking as President; (b) emphasized he was leavingMalacanang for the sake of peace and order – not because of some inability;(c) expressed his gratitude to the people for the opportunity to serve them,etc.Note; In the Law Public Officers, an essential element of resignation isthe acceptance by the proper authority.

- This element cannot be applied in the instances when the Presidentresigns.

- The President is the highest officer of the land, hence, there is no one toact on his resignation.

- Unique situation so SC applied a unique solution. (Concept of Constructive

Resignation)

POWERS OF THE PRESIDENT

I. SPECIFIC POWERS OF THE PRESIDENT

(1) Appointing Power – carries with it the power of removal ARTICLE VII,Sec. 16

(2) Control Power - ARTICLE VII, Sec. 17 – “The President shall havecontrol of all the executive departments, bureaus, and offices xxx.”

- With respect to local governments, the President merely has

power of general supervision. (ARTICLE X, Sec. 4)

(3) Military Power - ARTICLE VII, Sec. 18

There are actually 3:

(a) calling-out power as the commander-in-chief of all the armedforces

(b) power to declare martial law

(c) power to suspend the privilege of writ of habeas corpus

(4) Pardoning Power - ARTICLE VII, Sec. 19 – “Except in cases ofimpeachment, or as otherwise provided in this Constitution, the President

may grant reprieves, commutations, and pardons, and remit fines andforfeitures, after conviction by final judgment. He shall also have the powerto grant amnesty with the concurrence of a majority of all Members of theCongress.”

- 5 matters mentioned:

(a) reprieves(b) commutations(c) pardons(d) remit fines and forfeitures

(in these 4, conviction by final judgment is a requirement)(e) amnesty




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- require concurrence of the majority of Congress

- conviction by final judgment is not a requirement

- if case is still pending, may extend amnesty

(5) Borrowing Power - ARTICLE VII, Sec. 20 – “The President maycontract or guarantee foreign loans on behalf of the Republic of the

Philippines with the prior concurrence of the Monetary Board, and subject tolimitations as may be provided by law xxx.”

(6) Treaty-Making Power - ARTICLE VII, Sec. 21 – “No treaty orinternational agreement shall be valid and effective unless concurred in by atleast 2/3 of all the Members of the Senate.”

(7) Budgetary Power - ARTICLE VII, Sec. 22 – “The President shall submitto the Congress within 30 days from the opening of every regular session, asthe basis of the general appropriations bill, a budget of expenditures andsources of financing, including receipts from existing and proposed revenuemeasures.”(8) Informing Power - SONA

- ARTICLE VII, Sec. 23 – “The President shall address the Congress at the

opening of its regular session. He may also appear before it at any othertime.”

II. SPECIFIC POWERS OF THE PRESIDENT FOUND SOMEWHEREELSE IN THE CONSTITUTION

(1) Power of general supervision over local governments

- ARTICLE X, Sec. 4 – “The President of the Philippines shall exercisegeneral supervision over local governments xxx.”

2) Veto Power

- ARTICLE VI, Sec. 27

(3) Power to call Congress to special session

- ARTICLE VI, Sec. 15 – “The President may call a special session at anytime.”

III. OTHER POWERS

(1) Impoundment Power

- refusal of the President, for whatever reason, to spend fundsmade available by Congress. It is the failure to spend or obligate budgetauthority or any type. (PHIILCONSA VS. ENRIQUEZ)

- 3 principal sources:

(a) authority to impound given by Congress

(b) executive power – president as the commander-in-chief

(c) faithful execution clause

(2) Unstated Residual Powers

- powers which are not found in the Constitution, but he may validlyexercise. (Marcos vs. Manglapuz).

- reserved powers of the president

Q: How do you define executive powers?

A: Executive power is neither legislative nor judicial. (This implies that it isvery broad.)

APPOINTING POWER

- ARTICLE VII, Sec. 16

- correlate with Law on Public Officers

Nature of Appointing Power

- vested in the President; executive in nature- subject only to well-known exceptions- carries with it the removal power (power to hire carries with it the power tofire)

Structure of ARTICLE VII, Sec. 16: 2 Paragraphs

(1) list of officers who are to appointed by the President(2) ad interim appointments

FIRST SENTENCE, FIRST PARAGRAPH

Q: Will all appointments of the President require confirmation of theCommission on Appointments?

A: Not all appointments require confirmation under the present Constitution.Only those officers enumerated in the 1st sentence require confirmation.(Sarmiento vs. Mison)

- Under the 1935 Constitution, all appointments need confirmation.

- Under the 1973 Constitution, all appointments no longer need confirmation(because Congress was then abolished by President Marcos).




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- Experience shows that when all appointments required Confirmation, itbecame a venue for horse-trading and similar malpractices. On the otherhand, placing absolute power to make appointments in the President withhardly any check by the legislature, as what happened under 1973Constitution, leads to abuse of such power. Thus, was perceived the needto establish a “middle ground” between the 1935 and 1973Constitution.FOUR INSTANCES WERE CONFIRMATION IS REQUIRED

(1) Heads of executive departments

- appointment of cabinet secretaries requires Confirmation

- EXCEPTION: Vice-president may be appointed as a member of theCabinet and such appointment requires no confirmation. (ARTICLE VII,Sec. 3, Par. 2)

(2) Ambassadors, other public ministers and consuls

- those connected with the diplomatic and consular services of the country.

(3) Officers of the armed forces from the rank of colonel or navalcaptain

Q: What about officers of PNP of equivalent ranks?

A: No.

MANALO VS. SISTOZA

- President Aquino promoted 15 police officers by appointing them topositions in the PNP with the rank of Chief Superintendent to Director.Without their names submitted to the Commission on Appointments forconfirmation, the said police officers took their oath and assumed theirrespective positions. Manalo questioned this on the ground that both underSec. 16, ARTICLE VII of the 1987 Constitution and RA. 6975 (Local Govt Act of 1990) require thei r appointments to be submitted for confirmation andthat PNP is akin to the AFP.

SC: Only presidential appointments belonging to the first group requireconfirmation by the Commission on Appointments. The appointments ofpolice officers who are not within the first category need not be confirmed bythe Commission on Appointments. Consequently, unconstitutional areSections 26 and 31 of RA. 6975 which empowers the Commission on Appointments to confirm the appointments of public officials whoseappointments are not required by the Constitution to be confirmed.

- The PNP is separate and distinct from the AFP. The Constitution no less,sets forth the distinction. Under Sec. 4, ARTICLE XVII, “the armed forces ofthe Philippines shall be composed of a citizen armed force which shallundergo military training and service, as may be provided by law. It shall

keep a regular force necessary for the security of the state.” On the otherhand, Sec. 6 of the same article ordains that: “The state shall establish andmaintain one police force, which shall be national in scope and civilian incharacter to administered and controlled by a national police commission.The authority of local executives over the police units in their jurisdictionshall be provided by law.

- To so distinguish the police force from the armed force, Congress enactedRA. 6975. Thereunder the police force is different from and independent ofthe armed forces and the ranks int eh military are not similar to those in thePNP.

- Present PNP is no longer part of the AFP; is a civilian institution placedunder DILG. Unlike PCINP, which is a part of AFP, it is in fact armed forces.

(4) Other officers of the government whose appointments are vested inhim in this Constitution

EX: Chairmen and members of CSC, Comelec, COA (by express provision)

Regular members of JBC (ARTICLE VII, Sec. 8, Par. 2)

EXCEPTION: Judges, Justices, Ombudsman (by the creation of the

JBC, their appointments no longer require confirmation)

Sectoral representatives in Congress (Teresita Quintos deles et al vs.Commision on Constitutional Commission)

SECOND SENTENCE INSTANCES WHEN CONFIRMATION IS NOLONGER REQUIRED

(1) All other officers of the government whose appointments are nototherwise provided by law

(2) Those who he may be authorized by law to appoint

The Congress may, by law, vest the appointment of other officers lower inrank in the president alone, in the courts, or in the heads of departments,

agencies, commissions or boards.SARMIENTO VS. MISON

- It is evident that the position of Commissioner of Bureau of Customs (abureau head) is not one of those within the first group of appointmentswhere the consent of the Commission on appointments is required.MARYCONCEPCION BAUTISTA VS. SALONGA

- The appointment of the chairman and members of the Commission onHuman Rights is not specifically provided for in the Constitution itself. Unlikethe Chairmen and Members of the CSC, the Comelec and the COA, whoseappointments are expressly vested by the Constitution in the President with




36

the consent of the Commission on Appointments. The Human Rightspursuant to the second sentence in Sec. 16, ARTICLE VII, that is, withoutthe Confirmation of the Commission on Appointments because they areamong the officers of the government whom he may be authorized by law toappoint. And Sec. 2(c) EO. 135 (5 May 1987) authorizes the President toappoint the chairman and members of the Commission on Human Rights.

CALDERON VS. CARALE- Calderon questions the constitutiona lity and legality of the permanentappointments extended by the President to respondents chairman andmembers of the NLRC without submitting the same to the Commission on Appointments for conf irmation pursuant to ARTICLE 215 of the Labor Code,as amended by RA. 6715 (Herrrera-Veloso Law or the Act amending theLabor Code reorganizing the NLRC)

SC: The NLRC Chairman and Commissioners fall within the 2nd sentence ofSec. 16, ARTICLE VII of the Constitution more specifically under the “thirdgroup” of appointees – those whom the President may be authorized by lawto appoint. Undeniably, the chairman and members of the NLRC are notamong the officers mentioned in the 1st sentence of Sec. 16, ARCTICLE VII

whose appointments require confirmation by the Commission on Appointments. To the extent that RA. 6715 requires confirmation by theCommission on Appointments of the appointments of respondent chairmanand members of NLRC, it is unconstitutional.

- SC clarified that this list is EXCLUSIVE. Congress by a mere legislativeact may not validly amend the constitution by adding or deducting anythingfrom that list

SECOND PARAGRAPH: AD INTERIM APPOINTMENTS

Q: What are ad interim appointments?

A: AD INTERIM literally means “in the meantime” or “for the time being”.

- These are appointments made by the President when Congress is not in

session.

- Sec. 16, ARTICLE VII, Par. 2 should be correlated to Sec. 19, ARTICLE VI – “xxx The Commission on Appointments shall meet on ly while the Congressis in session xxx”.

- RATIONALE: Commission on Appointments meets when Congress isin session so that even if Congress is not in session, the President is notprecluded from making an appointment.

Q: What are regular appointments?

A: These are appointments made by the President when Congress is insession.

Q: What is the real distinction between the two?

A: The real distinction between ad interim and regular appointment lies inthe effectivity of the appointment.

AD INTERIM REGULAR

takes effect immediately does not take effect immediately ;takes effect only upon confirmationby the Commission on Appointments

there is risk of losing both positions(upon assumption of new office),he loses hisformer position

no risk involved (appointee cannotassume until appointment isconfirmed)

actually, the President appoints,subject only to the resolutorycondition that it be confirmed later on

by the Commission on Appointments

actually, the President does notappoint; he merely nominatessubject to confirmation by the

Commission on Appointments

MATIBAG VS. BENIPAYO

Benipayo, Tuason, and Borra were appointed Chairman and Commissionersrespectively of the COMELEC by the President when Congress was not insession. These ad interim appointments were by-passed by theCommission on Appointments. However, they were subsequently re-appointed by the President to the same positions. Upon assumption tooffice, Benipayo transferred Matibag to another department. Matibag nowquestions the validity of the appointments on the grounds that: (1) the adinterim appointments violate ARTICLE IX-C, Sec. 1, Par. 2 – “In no caseshall any member be appointed or designated in a temporary or acting

capacity (Matibag is of the impression that such ad interim appointments aretemporary because they are revocable at the will of the President); and (2)even assuming they are valid, their re-appointment violates ARTICLE IX-C,Sec. 1, Par. 2 – “The chairman and the commissioners shall be appointedxxx for a term of seven years without reappointment.”

SC: (1) An ad interim appointment is permanent in character (Summers vs.Ozaeta). The Consitution imposes no condition on the effectivity of an adinterim appointment and thus an ad interim takes effect immediately.

- The Constitution itself makes ad interim permanent appointment.




37

- An ad interim appointment is not descriptive of the nature of theappointment, that is, it is not indicative of whether the appointment istemporary or in an acting capacity, rather it denotes the manner in which theappointment was made. (Marohombsar vs. CA)

(2) There are four situations where ARTICLE IX-C, Sec. 1, Par. 2 will apply:

a) where an ad interim appointee to the Comelec, after confirmation by theCommission on appointment, serves his full seven-year term;

b) where the appointee, after confirmation, swerves a part of his term andthen resigns before his seven-year term of office ends;

c) where the appointee is confirmed to serve the unexpired term ofsomeone who died or resigned and the appointee completes the unexpiredterm;

d) where the appointee has previously served a term of less than sevenyears, and a vacancy arises from death or resignation.

- 2nd issue is of first impression! (not yet asked in the bar)

- In any of these four situations, it presupposes that the appointment had

already been confirmed by the Commission on Appointments. It will notapply in this case where the appointments were by-passsed.Q: What if theappointments were actually disapproved and not simply by-passed, can theystill be validly reappointed?

A: No. The disapproval is actually a judgment on the merits of theirqualification. The principle of checks and balances will come into play.

PIMENTEL VS. ERMITA

- The cabinet secretaries were appointed as acting secretaries of theirrespective departments while Congress is in session. Thus, the Senatorsfiled a petition to compel the president to extend regular appointments.SC:Nature of the Power to Appoint

- The power to appoint is essentially executive in nature, and the legislaturemay not interfere with the exercise of this power except in those instanceswhen the Constitution expressly allows it to interfere.- Appointment isdiscretionary.

- The essence of an appointment in an acting capacity is its temporarynature. It is a stop-gap measure intended to fill an office for a limited timeuntil the appointment of a permanent occupant to the office. In case ofvacancy in a n office occupied by an alter ego of the President, such as theoffice of a department secretary, the President must necessarily appoint analter ego of her choice as acting secretary before the permanent appointeeof her choice could assume office.

- Hence, the President cannot be compelled especially since the positionsof cabinet secretary require trust and confidence.

Distinctions between Ad Interim and Acting Appointments

Ad Interim Acting Appointments

extended only during a recess ofCongress

extended anytime there is a vacancy

permanent in nature merely temporary

requires confirmation by theCommission on Appointments

does not require such confirmation

Note: Mootness of the Petition – When the Congress adjourned, GMAextended ad interim appointments but this is an exception because the caseis capable of repetition yet evading review.

LIMITATIONS ON THE APPOINTING POWER OF THE PRESIDENT

(1) ARTICLE VII, Sec. 13, Par. 2 – “The spouse and relative byconsanguinity or affinity within the fourth civil degree of the President shall

not, during his tenure be appointed as member of the ConstitutionalCommissions, or the Office of the Ombudsman, or as secretaries,undersecrataries, chairmen or heads of bureaus or offices, includinggovernment-owned or controlled corporations and their subsidiaries.”(nepotic appointments)

- This is a prohibition against NEPOTISM on the President.

Q: To what positions? A: (1) Constitutional Commissions – COA, Comelec, CSC

(2) Office of the Ombudsman(3) Secretaries(4) Undersecretaries(5) Chairmen or heads of bureaus or offices, including GOCC’s and their

subsidiaries(2) ARTICLE VII, Sec. 15 – “Two months immediately before the nextpresidential elections and up to the end of his term, a President or actingPresident shall not make appointments except temporary appointment toexecutive positions when continued vacancies therein will prejudice publicservice or endanger public safety.”

- This applies only to a presidential election: every 6 years.

Q: To what kind of appointment is this directed against?




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A: This is directed against 2 types of appointments: (In Re: Valenzuela andVallaria)

(1) those made for buying votes (to influence the outcome of Presidentialelections)

- refers to those appointments made within the 2 months preceding

a Presidential election and are similar to those which are declared electionoffenses in the Omnibus Election Code.

(2) those made for partisan considerations (the so-called “midnightappointments”)

- refers to appointments made after election day but before theterm of the next president begins (30 June).

- Hence, this provision contemplate not only midnight appointments(appointments made for partisan considerations where an outgoingPresident fells up all vacant positions thereby preempting an incomingpresident of his prerogative) but also appointments presumed made for thepurpose of influencing the outcome of the Presidential election.

AYTONA VS. CASTILLO

- After the proclamation of Diosdado Macapagal as duly elected President,President Carlos P. Garcia, who was defeated in his bid for reelection,became no more than a “caretaker” administrator, whose duty was toprepare for the orderly transfer of authority to the incoming President.

IN RE: HON. MATEO VALENZUELA AND HON. PLACIDO VALLARTA

- Before the 11 May 1998 elections, President Ramos appointed on 30March 1998 2 gentlemen as RTC judges. On 14 May 1998, already after theelections, their appointments were transmitted to the Office of the ChiefJustice. However, the 2 were able to secure advance copies of theirappointments so they were able to take their oaths and assumed office.

SC: The questioned appointments are void. They were unquestionab lymade during the period of the ban. Consequently , they come within theprohibition relating to appointments which are considered to be for thepurpose of buying votes or influencing the elections.

- The only exception is temporary appointments to executive positions whencontinued vacancies therein will prejudice public service or endanger publicsafety. However, this case does not even fall within the exception. Theirappointments are not temporary and not to an executive but to the judiciary.

Q: How do you detect if it’s a midnight appointment or for purpose of vote-buying?

A: If the appointment was made within 2 months immediately preceding thepresidential election, then the purpose is for vote-buying or to influence theoutcome of the elections. IF the appointment was made after thePresidential election but before the outgoing president’s term end (his termends noon of June 30), then it is midnight appointment.

DE RAMA VS. CA

- Ma. Evelyn S. Abeja was a municipal Mayor. When her term is about toend, she filled up all the positions before she vacated her position. Whenher successor sit, there was no more vacancy and all the appointments werenullified by the latter on the ground that they were midnight appointments.

SC: The records reveal that when De Rama brought the matter of recallingthe appointments of the 14 respondents before the CSC, the only reason hecited to justify his action was that these were “midnight appointments” thatare forbidden under ARTICLE VII, Sec. 15 of the Constitution. However, theCSC ruled and correctly so, that the said prohibition applies only topresidential appointments. In truth and in fact, there is no law that prohibitslocal elective officials from making appointments during the last days of hisor her tenure.

(3) ARTICLE VII, Sec. 13, Par. 1 – “The President, Vice President, theMembers of the Cabinet and their deputies or assistants shall not, unlessotherwise provided in this Constitution, hold any other office or employmentduring their tenure. They shall not, during said tenure, directly or indirectly,practice any other profession, participate in any business, or be financiallyinterested in any contract with, or in any franchise, or special privilege,granted by the Government or any subdivision, agency or instrumentalitythereof, including government-owned and controlled corporations or theirsubsidiaries. They shall strictly avoid conflict in the conduct of their office.”

- This is a prohibition against HOLDING MULTIPLE POSITIONS.Q:Directed against whom?

A: (1) President

(2) Vice President

(3) Member of the Cabinet and their deputies or assistants

- applies to private employment

- the idea is for them to focus in their functions

Q: What are the exceptions?

A: (1) unless otherwise provided in this Constitu tion




39

EX: The Vice President may be appointed as a Member of theCabinet xxx. (ARTICLE VII, Sec. 3, Par. 2)

The Secretary of Justice is an ex-officio Member fo theJudicial and Bar Council (ARTICLE VIII, Sec. 8, Par. 1)

(2) If they will hold that other office in an ex-officio capacity. (Civil

Liberties Union vs. Exec. Sec.)CIVIL LIBERTIES UNION VS. EXECUTIVE SECRETARY

President Aquino issued EO 284 allowing member of cabinet to hold notmore than 2 other positions in the government including government-ownedand controlled corporations. EO 284 was issued when President Aquino stillexercises legislative powers. The idea was to have them earn more.Pursuant to EO 284, President Aquino appointed member of her Cabinet toother positions. Civil Liberties Union questioned this on the ground that asMembers of the Cabinet, they are prohibited from holding other positionsunder ARTICLE VII, Sec. 13. On the other hand, the Solicitor Generalcontends that they are covered by ARTICLE IX-B, Sec. 7, Par. 2 becausethey are appointive officials. As members of cabinet, they can hold otheroffice if a law allows it, in this case, there is a law, EO 284.

SC: The contention of Civil Liberties Union is correct. Section 7, ARTICLEIX-B, Par. 2 (“Unless otherwise allowed by law or by the primary functions ofhis position, no appointive official shall hold any other office or employmentin the government or any subdivision, agency or instrumentality thereof,including government-owned or controlled corporations or theirsubsidiaries.”) is meant to lay down the general rule applicable to allappointive public officials and employees while Section 13, ARTICLE VII ismeant to be the exception applicable only to the President, Vice President,Members of the Cabinet and their deputies and assistants.

- The evident purpose of the framers of the 1987 Constitution is to impose astricter prohibition.

- Section 13, ARTICLE VII is a new provision not found in 1935 and 1973Constitution.

- This was a reaction to what happened during the Marcos Regime. Therewas proliferation of newly created agencies, instrumentalities, andgovernment-owned or controlled corporations created by presidentialdecrees and other modes of presidential issuances where cabinet members,their deputies and assistants were designated to head or sit as member ofthe board with the corresponding salary, emoluments, per diems,allowances, and other perquisites of the office. This practice of holdingmultiple offices or positions in the government soon led to abuses by

unscrupulous public officials who took advantage of this scheme forpurposes of self-enrichment.

- EO 284 was declared null and void!

PUBLIC INTEREST CENTER, INC. VS. ELMA

Magdangal B. Elma was appointed by the President as Chairman of the

PCGG. At the same time, he was appointed as Chief Presidential LegalCounsel. At that time, PCGG was placed directly under the Office of thePresident and PCGG Chairman has the same rank, position, and salary asthat of a cabinet secretary. Public Interest center questioned this on theground that Elma, as a member of cabinet, he is prohibited from holding 2positions under ARTICLE VII, Section 14.

SC: The prohibition in Section 13, ARTICLE VII of the 1987 Constitutiondoes not apply to Elma since neither the PCGG Chairman nor the CPLC is acabinet secretary, undersecretary, or assistant secretary even if the formermay have the same rank as the latter positions. Even if Section 13, ARTICLE VII is not applicable, Elma s till could not be appointed concurrentlyto the offices of the PCGG Chairman and CPLC because neither office wasoccupied by him in an ex-officio capacity and the primary functions of oneoffice do not require an appointment to the other post. Moreover, even if theappointments in question are not covered by Section 13, ARTICLE VII of the1987 Constitution, said appointments are still prohibited under Section 7, ARTICLE IX-B, which covers all appointive and elective officials, due to theincompatibility between the primary functions of the offices of the PCGGChairman and the CPLC.

- PRINCIPLE OF INCOMPATIBLE OFFICE : one which may not be held bya member during his term without forfeiting his seat.

EX: Fiscal and PAOTreasurer and AuditorCongressman and Cabinet Secretary

ARTICLE VI, Sec 13 – “No Senator or Member of the

House of Representatives may hold any other office or employment in theGovernment, or any subdivision, agency, or instrumentality thereof, includingGOCC’s or their subsidiaries, during his term without forfeiting his seat.Neither shall he be appointed to any office which may have been created oremoluments thereof increased during the term for which he was elected.”

INCOMPATIBLE OFFICE FORBIDDEN OFFICE

referred to in the first sentence referred to in the second sentence

one which may not be held by amember during his TERM of office

one which is forbidden by law even ifhe is willing to forfeit his seat.




40

without forfeiting his seat.

TERM: provided by law

TENURE: actual stay in office

-not necessary for him to resignbefore he accepts the other office; It

is automatic.

a member may be validly appointedbut he forfeits his seat.

he may not be validly appointed

more of an inhibition more of a prohibition

Q: Congressman X was appointedas Secretary of DENR, can hevalidly accept the appointment?

A: Yes.

Q: Congress created a new office,Urban Poor Commission. Itappropriated P10B. Congressman Xresigned and applied for thatposition. Can he be validlyappointed?

A: No. It was created during theterm in which he was elected. Evenif he is willing to resign, He cannotstill be appointed because it is aforbidden office.

Q: Can he still go back to his formerposition?

A: No!

- In this case, the function of CPLC is to review decisions of officers under

the Office of the President and among them is the PCGG.CONTROL POWER

ARTICLE VII, Sec. 17 – “The President shall have control of all the executivedepartments, bureaus, and offices. He shall ensure that the laws befaithfully executed.”

CONTROL GENERAL SUPERVISION

exercised over all executivedepartments bureaus, and offices

exercised over local governments

ARTICLE X, Section 4 – “ThePresident of the Philippines shallexercise general supervision overlocal governments xxx”

ARTICLE II, Section 25 – “The Stateshall ensure the autonomy of local

governments.”

Q: What is CONTROL?

A: (1) to direct the performance of a duty; (2) to restrain the commission of acts;(3) to review, reverse, revise, alter, or modify the decisions of his

subordinates; or(4) to substitute his own decision over that of his subordinates.

Q: Does the President have CONTROL over local government units?

A: No. His power is limited to GENERAL SUPERVISION. The power of

supervision means “overseeing or the authority of an officer to see that thesubordinate officers perform their duties. If the subordinate officers fail orneglect to fulfill their duties, the official may take such action or step asprescribed by law to make them perform their duties. The President’s powerof general supervision means no more than the power of ensuring that lawsare faithfully executed or that subordinate officers act within the law.(JOSON VS. TORRES)

- Hence, the President’s power of general supervision means to oversee; tosee to it that the local governments and their officials perform their functionsin accordance with law. No more than that.

- Control is said to be the very heart of the power of the President. (Josonvs. Torres)

Q: What is an EXECUTIVE DEPARTMENT, BUREAU, OR OFFICE?

A: EO 292 : ADMINISTRATIVE CODE OF 1987:

DEPARTMENT: any of the executive departments created by law.Ex: Depatment of Finance

BUREAU: a principal subdivision of a department.Ex: Bureau of Internal Revenue and Bureau of Customs

OFFICE: a major functional unit of a department or bureau.Ex: Office of the Secretary of Finance, Regional Office of BIR

- All of these are under the control of the President.



Political Law Review Notes (Atty. Edwin Sandoval) Prepared by: Atty Joan P. Gamboa41

DOCTRINE OF QUALIFIED POLITICAL AGENCY or ALTER EGO

The acts, decisions of the members of the cabinet, heads of bureaus andoffices, being alter ego of the President, rendered or performed in theregular course of business are deemed to the acts of the President, unlessreprobated by him.

PIMENTEL VS. AGUIRRE Allegedly, we were experiencing economic difficulties then so PresidentEstrada issued AO 43, amending Section 4 of AO 372, by reducing to fivepercent the amount of Internal revenue Allotment (IRA) to be withheld fromthe LGU’s. Pimentel, Jr. et al. contends that in issuing AO 43, the Presidentwas in effect exercising the power of control over LGU’s while theConstitution vests in the President, however, only the power of generalsupervision over LGU’s. Also, they argued that the directive is incontravention of Section 286 of the LGC and of Section 6, Article X of theConstitution providing for the automatic release to each of these units itsshare in the national internal revenue.

SC: Such withholding clearly contravenes the Constitution and the law. TheConstitution vests the President with the power of supervision, not control,

over LGU’s. Such power enables him to see to it that LGU’s and theirofficials execute their tasks in accordance with law. While he may issueadvisories and seek their cooperation in solving economic difficulties, hecannot prevent them from performing their tasks and using availableresources to achieve their goals. He may not withhold or alter any authorityor power given them by law. Thus, the withholding of a portion of internalrevenue allotments legally due them cannot be directed by administrativefiat.

GANZON VS. CA

There were 10 administrative charges against Mayor Ganzon of Iloilo in theOffice of the President. The Office of the President investigated. DILGSecretary, as the President’s alter ego, preventively suspended Ganzon.

Ganzon questioned this contending that the Constitution has left thePresident mere supervisory powers which supposedly excludes the power ofinvestigation and denied her control which allegedly embraces disciplinaryauthority. According to him, the President may not validly investigate andmuch more cannot place him under preventive suspension which is anincident of the power to investigate.

SC: The impression of Ganzon is mistaken. Legally, supervision is notincompatible with disciplinary authority. Investigating is not inconsistent withoverseeing although it is a lesser power than “altering”.

- How can you expect the President to determine that the following performstheir powers and functions in accordance with law if you will deny him thepower to investigate.

- The power to investigate is an incident of the power of control.

MILITARY POWERS ARTICLE VII, Sec 18 –

3 DISTINCT MILITARY POWERS OF THE PRESIDENT

(1) Calling out power as the Commander-in-chief of the Armed Forces of thePhilippines(2) Power to proclaim martial law(3) Power to suspend the privilege of the writ of habeas corpus

INSTANCES WHEN THE PRESIDENT MAY CALL OUT AFP – Tosuppress

(1) lawless violence(2) invasion(3) rebellion

INSTANCES WHEN THE PRESIDENT MAY DECLARE MARTIAL LAW orSUSPEND THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS

(1) invasion }

} when public safety requires it

(2) rebellion }

Other Limitations

(1) For a period not exceeding 60 days

(2) Expressly been made subject to judicial review under ARTICLE VII, Sec.18, Par. 3 – “The Supreme Court may review, in an appropriate proceeding

filed by any citizen, the sufficiency of the factual basis of the proclamation ofMartial Law or the suspension of the privilege of the writ of habeas corpus orthe extension thereof, and must promulgate its decision thereon within thirtydays from its filing.” (LANSANG VS. GARCIA)

(3) Within 48 hours from the proclamation of martial law or the suspension ofthe privilege of the writ of habeas corpus, the President shall submit a reportin person or in writing to the Congress.

(4) The Congress, voting jointly, by a vote of at least a majority of all itsmembers in regular or special session,, may revoke such proclamation orsuspension, which revocation shall not be set aside by the President.



Political Law Review Notes (Atty. Edwin Sandoval) Prepared by: Atty Joan P. Gamboa 42

(5) Upon the initiative of the President, the Congress, may in the samemanner, extend such proclamation or suspension for a period to bedetermined by the Congress, if the invasion or rebellion shall persist andpublic safety requires it.

(6) The Congress, if not in session, shall, within 24 hours following suchproclamation or suspension, convene in accordance with its rules without

need of a call.(7) A state of martial law does not suspend the operation of the Constitution,nor supplant the functioning of the civil courts or legislative assemblies, NORauthorize the conferment of jurisdiction on military courts and agencies overcivilians, where civil courts are able to function, (OLAGUER DOCTRINE)Nor automatically suspend the privilege of the writ.

OLAGUER DOCTRINE

- Superseded AQUINO VS. COMMISSIONER

- during martial law, military courts may assume jurisdiction over civilians

- Ninoy Aquino questioned the assumption of jurisdiction of the militarytribunals

- predictably, he was sentenced to death by musketry (firing squad)

- sentence was not carried out but he died just the same

- Several Filipinos abroad were against the decision in Aquino vs.Commission – they were known as Olaguer group.

- They were out to embarrass the Marcos Government.

- Unfortunately, the Lovely brothers, among their con-conspiratorsaccidentally detonated a bomb.

- They did not die and the group was arrested.

- All were sentenced to die by musketry.

- While the case was pending before the SC, EDSA I happened.

- Justice Teehankee, the lone dissenter in the Aquino case,became the Chief Justice of SC and he penned the Olaguer doctrine.

- ARTICLE VII, Sec. 18, Par. 5 – “The suspension of the privilege of the writshall apply only to persons judicially charged for rebellion or offensesinherent in or directly connected with invasion.”

- In connection with ARTICLE III, Sec. 13 – If the offense is bailable, onecan still post bail because under this – “The right to bail shall not be impairedeven if the privilege of the writ of habeas corpus is suspended.”

- ARTICLE VII, sec. 18, Par. 6 – “During the suspension of the privilege ofthe writ, any person thus arrested or detained shall be judicially chargedwithin 3 days, otherwise he shall be released.”

PARDONING POWER

ARTICLE VII, Sec.19 – “Except in cases of impeachment, or as otherwise

provided in this Constitution, the President may grant reprieves,commutations, and pardons and remit fines and forfeitures, after convictionby final judgment.

He shall also have the power to grant amnesty with the concurrence of amajority of all the Members of the Congress.”

FIVE MATTERS COVERED

(1) To grant reprieves

(2) To grant commutations

(3) To grant pardons

(4) To remit fines and forfeitures

(5) To grant amnesty

AMNESTY

- segregated from the 4 others

- concurrence of the majority of all member of congress is required

- conviction by final judgment is not required unlike the 4 others

PARDON AMNESTY

concurrence of congress is notrequired

concurrence of congress is required

conviction by final judgment is

required

may be granted even without prior

conviction by final judgmentmay mean forgiveness but notforgetfulness

erases whatever shade of guilt therewas

usually extended to individualsconvicted of common crimes

extended to group of individualscharged of political offenses

private act of the President official act of the President

- Important to know distinction because of judicial notice

- Under the law on evidence, there are 3 things which need not be proven:




(1) those matters which the court must take judicial notice of(2) judicial admissions(3) presumptions

- Under Section1, Rule 129 of the Rules of Court, one of the matters whichthe courts must take judicial notice of is the official acts of the legislative,executive and judicial departments of the Philippines.

- Hence, amnesty, which is an official act of the President, no longerrequires proof.

- On the other hand, pardon, being a private act of the President, requiresproof and the convict who was granted such pardon has the burden of proof.

LIMITATIONS OF THE PARDONING POWER

(1) does not apply in cases of impeachment (ARTICLE VII, Sec. 19)(2) there must first be conviction by final judgment (ARTICLE VII, Sec. 19)(3) not applicable to legislative contempt(4) not applicable to election offenses without favorable recommendation ofComelec (ARTICLE IX-C, Sec. 5)

REPRIEVE – suspension or stay of execution of a death convict

Probation – suspension of penalty

COMMUTATION – reduction of penalty by 1 degree from death to RP

Q: Is pardon available to those guilty of administrative offenses?

A: Yes. Pardon is available not only to those guilty of c riminal offense butalso to those guilty of administrative offense. Section 19, ARTICLE VIImakes no distinction between criminal offense and administrative offenseexcept with respect to impeachment. If persons convicted of heinous crimeswhere evidence of guilt is beyond reasonable doubt are entitled to pardon,why do we have to deny the same to those convicted of administrativeoffenses where only substantial evidence is required? (LLAMAS VS.ORBOS)MONSANITO VS. FACTORAN – Not entitle to be reinstated; no

backwages

The Assistant Municipal Treasurer was convicted of malversation throughfalsification of public document. Later, he was granted absolute pardon bythe President, when he was released, he demanded to be reinstated to hisformer position and be paid backwages.

SC: Pardon granted after conviction frees the individual from all thepenalties and legal disabilities and restores him to all his civil rights. Butunless expressly grounded on the person’s innocence (which is rare), itcannot bring back lost reputation for honesty, integrity, and fair dealing. Thismust be constantly kept in mind, lest we lose track of the true character and

purpose of the privilege. Pardon does not ipso facto restore a convictedfelon to public office necessarily relinquished or forfeited by reason of theconviction although such pardon undoubtedly restores his eligibility forappointment to that office.

- The very essence of a pardon is forgiveness or remission of guilt. Pardonimplies guilt. It does not erase the fact of the commission of the crime and

the conviction thereof. It does not wash out moral stain. It involvesforgiveness not forgetfulness.

- A pardon looks to the future. It is not retrospective. It makes no amendsfor the part. It affords no relief for what has been suffered by the offender.

- Hence, she is excused from serving sentence; but in the eyes of the law,she is still a convict. Unless the grant expressly so provides, she cannot bereinstated. And since she is not entitled to be reinstated, with more reasonthat she is not entitled to backwages.

- It does not impose upon the government any obligation to make reparationfor what has been suffered since the offense has been established by judicial proceedings, that which has been done or suffered while they werein force is presumed to have been rightfully done and justly suffered and no

satisfaction for it can be required.GARCIA VS. COA

Garcia was an employee of the Bureau of Telecommunications. Severalproperties of BT were lost. He was summarily dismissed from the service onthe ground of dishonesty. It became final subsequently. A criminal case forqualified theft was filed against Garcia based on the same facts obtaining inthe administrative actions. After a full blown trial, Garcia was acquitted notbased on lack of proof beyond reasonable doubt but based on an expressfinding that he was innocent of the crime charged. Garcia soughtreinstatement to his former position in view of his acquittal in the criminalcase. Bureau of Telecommunications denied his request. Hence, Garciapleaded to the President for executive clemency. Acting on the favorableendorsements of the then Ministry of Transportation and Communicationsand the CSC, the President granted Garcia executive clemency. ThenGarcia filed with COA a claim for payment of backwages. This was deniedby COA on the ground that executive clemency granted to him did notprovide for the payment of back salaries and that he has not been reinstatedin the service.

SC: Garcia should not be considered to have left his office for all legalpurposes, so that he is entitled to all the rights and privileges that accrued tohim by virtue of the office held, including backwages. If the pardon is basedon the innocence of the individual, it affirms this innocence and makes him anew man and as innocent as if he had not been found guilty of the offensecharged. When a person is given pardon because he did not truly commit




the offense, the pardon relieves the party from all punitive consequences ofhis criminal act, thereby restoring him his clean name, good reputation andunstained character prior to the finding of guilt.

- The bestowal of executive clemency on Garcia in effect completelyobliterated the adverse effects of the administrative decision which foundhim guilty of dishonesty and ordered his separation from the service. This

can be inferred from the executive clemency itself exculpating Garcia fromthe administrative charge and thereby directing his reinstatement, which isrendered automatic by the grant of the pardon. This signifies that petitionerneed no longer apply to be reinstated to his former employment . He isreinstated to his office ipso facto upon the issuance of the clemency. Hisautomatic reinstatement entitles him to backwages.

- He is entitled to full backwages for 8 years. Verily, law, equity, and justicedictate that Garcia be afforded compassion for the embarrassment,humiliation, and above all injustice caused to him and his family by hisunfounded dismissal. This is a little measure. SC even commended him forprotecting government property.

ESTRADA VS. DESIERTO

Leo Echegaray was convicted of qualified rape. At that time, the deathpenalty is still in effect. On the date he is to be executed by lethal injection,the SC issued a TRO. This was criticized on the ground, among others, thatit encroached on the power of the President to grant reprieve under Sec. 19, ARTICLE VII of the 1987 Constitution.

SC: Sec. 19, ARTICLE VII of the 1987 Constitution is simply the source ofpower of the President to grant reprieves, commutations, and pardons andremit fines and forfeiture after conviction by final judgment. This provision,however, cannot be interpreted as denying the power of the courts to controlthe enforcement of their decisions after the finality. In truth, an accused whohas been convicted by final judgment still possesses collateral rights andthese rights can be claimed in the appropriate courts. The suspension ofsuch a death sentence is indisputably an exercise of judicial power. It is notusurpation of the presidential power of reprieve though its effect is the same – the temporary suspension of the execution of the death convict. Thepowers of the Executive, Legislative, and the Judiciary to save the life of adeath convict do not exclude each other for the simple reason that there isno higher right than the right to life.

Q: Discuss the nature of a CONDITIONAL PARDON.

A: A CONDITIONAL PARDON is in the nature of a contract between thesovereign power of the Chief Executive and the convicted criminal to theeffect that the former will release the latter subject to the condition that if hedoes not comply with the terms of the pardon, he will be recommitted to

prison to serve the unexpired portion of the sentence or an additional one.By the pardonee’s consent to the terms stipulated in this contract, thepardonee has thereby placed himself under the supervision of the ChiefExecutive or his delegate who is duty-bound to see to it that the pardoneecomplies with the terms and conditions of the pardon. (In Re: WilfredoSumulong Torres)

Q: Is the grant or revocation of conditional pardon by the President subjectto judicial review?

A: No! This exercise of presidential judgment is beyond judicial scrutiny.(In Re: Wil fredo Sumulong Torres)

BORROWING POWER

ARTICLE VII, Sec. 20 – “The President may contract or guarantee foreignloans on behalf of the Republic of the Philippines with the prior concurrenceof the Monetary Board, and subject to such limitations as may be providedby law xxx.”

LIMITATIONS ON THE BORROWING POWER:(1) There must be prior concurrence of the Monetary Board.

(2) Subject to such limitations as may be provided by law.

TREATY-MAKING POWER

ARTICLE VI I, Sec. 21 – “No treaty or international agreement shall be va lidand effective unless concurred in by at least 2/3 of all the Members of theSenate.”

Q: Who has the power to ratify treaties?

A: The power to ratify is vested in the President and not in the legislature.The role of the Senate is limited only to giving or withholding its consent orconcurrence to the ratification. (Bayan vs. Zamora)

- What requires concurrence is a treaty or international agreement NOT an

executive agreement.

Q: Is an EXECUTIVE AGREEMENT equally binding as anINTERNATIONAL AGREEMENT?

A: Yes. In international law, there is no difference between treaties andexecutive agreements in their binding effect upon states concerned as longas the functionaries have remained within their powers. International lawcontinues to make no distinction between treaties and executiveagreements. They are equally binding obligations upon nations.




- The distinction between TREATY and EXECUTIVE AGREEMENT is moreof a municipal law – whether concurrence of the Senate is required or not.

Q: How to determine whether an agreement is executive or international?

A: INTERNATIONAL EXECUTIVE- involves major policy - involves implementation of that policy- more or less permanent and of - more or less temporary longerduration and of short durationQ: Is VFA a treaty?

A: Yes. The President himself considered it as a treaty. He referred theVFA to the Senate for concurrence.

Q: What are the conditions before foreign military bases, troops, or facilitiesmay be allowed in the Philippines pursuant to ARTICLE XVIII, Sec. 25 of the1987 Constitution?

A: Sec. 25, ARTICLE XVIII disallows foreign military bases, troops orfacilities in the country unless the following conditions are sufficiently met:

(a) it must be under a treaty;

(b) the treaty must be duly concurred in by the Senate and when sorequired by Congress, ratified by a majority of the votes cast by the people ina national referendum; and

(c) recognized as a treaty by the other contracting state

BAYAN VS. ZAMORA

The President entered into a VFA with the US under which American troopswill be allowed to enter the Philippines to conduct joint military exercises withmembers of the Philippine armed forces. He subsequently transmitted saidVFA to the Senate for concurrence invoking his treaty-making power underSection 21, ARTICLE VII of the 1987 Constitution. Petitioners, who areopposed to the VFA, challenged the constitutionality of said VFA contendingthat it was grave abuse of discretion on the part of the President to transmit

the same to the Senate invoking Section 21, ARTICLE VII of the Constitutionas the controlling provision should have been Section 25, ARTICLE XVIII.

Q: Which Constitutional provision was upheld?

A: Petitioners’ contention on this point was upheld.

- Section 21, ARTICLE VII deals with treaties or international agreements ingeneral, in which case, the concurrence of at least 2/3 of all the Members ofthe Senate is required to make the subject treaty or international agreementvalid and binding on the part of the Philippines. This provision lays down thegeneral rule on treaties or international agreements and applies to any form

of treaty with a wide variety of subject matter, such as, but not limited to,extradition or tax treaties or those economic in nature. All treaties orinternational agreements, entered into by the Philippines, regardless ofsubject matter, coverage, or particular designation or appellation, requiresthe concurrence of the Senate to be valid and effective.

- In contrast, Section 25, ARTICLE XVIII is a special provision that applies

to treaties which involve the presence of foreign military bases, troops, orfacilities in the Philippines. Under this provision, the concurrence of theSenate is only one of the requisites to render compliance with theconstitutional requirement and to consider the agreement binding on thePhilippines.

- Undoubtedly, section 25, ARTICLE XVIII which specifically deals withtreaties involving foreign military bases, troops, or facilities should apply inthe instant case. It is a finely-imbedded principle in statutory constructionthat special provision or law prevails over a general one. To a certain extentand in a limited sense, however the provisions of Section 21, ARTICLE VIIwill find applicability with regard to the issue and for the sole purpose ofdetermining the number of votes required to obtain the valid concurrence ofthe Senate.

Q: The nature of the petition filed was for certiorari and prohibition. Did itconstitute grave abuse of discretion on the part of the President when hesubmitted the VFA to the Senate invoking Section 21 instead of Section 25?

A: No! The President, in ratifying the VFA and in submitting the same toSenate for concurrence, acted within the confines and limits of the powersvested in him by the Constitution. It is of no moment that the President, inthe exercise of his wide latitude of discretion and in the honest belief thatVFA falls within the ambit of Section 21, ARTICLE VII of the Constitutionreferred to the Senate for concurrence. Certainly, no abuse of discretionmuch less a grave, patent and whimsical abuse of judgment, may beimputed to the President in his act of ratifying the VFA and referring thesame to the Senate for the purpose of complying with the concurrence

requirement embodied in the fundamental law. In doing so, the Presidentmerely performed a constitutional task and exercised a prerogative thatchiefly pertains to the functions of his office.

BUDGETARY POWER

ARTICLE VII, Sec. 22 – “The President shall submit to the Congress within30 days from the opening of every regular session, as the basis of thegeneral appropriations bill, a budget of expenditures and sources offinancing, including receipts from existing and proposed revenue measures.”

- Correlate with Section 25(1), ARTICLE VI – “Congress may not increasethe appropriations recommended by the President for the operation of the




Govt as specified in the budget. The form, content, and manner ofpreparation of the budget shall be prescribed by law.”

- The most that Congress could do is to trim down or slash the budget!

INFORMING POWER

ARTICLE VII, Sec. 23 – “The President shall address the Congress at the

opening of the regular session. He may also appear before it at any othertime.”

JUDICIAL DEPARTMENT

JUDICIAL POWER (ARTICLE VIII, Sec. 1)TYPES OF POLITICAL QUESTIONSTHREE IMPORTANT FUNCTIONS OF THE COURTREQUISITES FOR THE EXERCISE OF JUDICIAL REVIEW

COMPOSITION OF THE SUPREME COURT – Section 4, ARTICLE VIII- 15 Justices: Chief Justice and 14 associate Justices- May sit en banc or, in its discretion, in divisions of 3, 5, or 7 members- In practice, sits in division of 5

- First division: Chief Justice = Chairman- Second division: 1st most senior = Chairman- Third division: 2nd most senior = Chairman

QUALIFICATION – Section 7, ARTICLE VIII

OF MEMBERS OF SUPREMECOURT

OF ANY LOWER COLLEGIATECOURT

(1) natural born citizen of the Phils. (1) citizen of the Phils.

(2) at least 40 years of age (2) member of the Bar

(3) must have been for 15 years ormore a judge of a lower court or

engaged in the practice of law in thePhils

(3) possesses the qualificationsprescribed by Congress

(4) must be a person of provencompetence, integrity, probity andindependence

(4) must be a person of provencompetence, integrity

probity and independence

QUORUM = 8

MAJORITY = 5

VOTING

- Only the members present and who participated in the deliberations on theissues in the case shall vote.

- All cases xxx which shall be heard en banc xxx shall be decided with the

concurrence of a majority of members who actually took part in thedeliberations on the issues in the case and voted thereon.

- Cases or matters heard by division shall be decided or resolved with theconcurrence of a majority of Members who actually took part in thedeliberations on the issues in the case and voted thereon and in no case,without the concurrence of a t least 3 such members.

- When the required number is not obtained, the case shall be decided enbanc.

- No doctrine or principle of law laid down by the court in a decisionrendered en banc or in a division may be modified or reversed except by thecourt sitting en banc.

Q: What cases are to be heard by the Supreme Court en banc? A: (1) Cases in which the constitutionality or validity of any treaty,international or executive agreement, law, executive order, or presidentialdecree, proclamation, order, instruction, ordinance or regulation is inquestion;

(2) Criminal cases in which the appealed decision imposes the deathpenalty;

(3) Cases raising novel questions of law;

(4) Cases affecting ambassadors, other public ministers and consuls;

(5) Cases involving decisions, resolutions, or orders of the CSC,Comelec, and COA;

(6) Cases where the penalty to be imposed is the dismissal of a judge,officer or employee of the judiciary, disbarment of a lawyer, or either thesuspension of any of them for a period of more than one (1) year or a fineexceeding P10,000 or both;

(7) Cases where a doctrine or principle laid down by the court en bancor in division may be modified or reversed;

(8) Cases assigned to a division which in the opinion of at least (3)members thereof merit the attention of the court en banc and are acceptableto a majority of the actual membership of the court en banc; and




(9) All other cases as the court en banc by a majority of its actualmembership may deem of sufficient importance to merit its attention.

CONSTITUTIONAL PROVISIONS THAT TEND TO STRENGTHEN THEINDEPENDENCE OF THE JUDICIARY

(1) ARTICLE VIII, Sec. 9 – “The Members of the Supreme Court and judgesof lower courts shall be appointed by the President from a list of at leastthree nominees prepared by the Judicial and bar Council for every vacancy.Such appointments need no confirmation.”

JUDICIAL AND BAR COUNCIL (Section 8, Article VIII)

Functions:

-principal function of recommending appointees to the judiciary-may exercise such other functions and duties as the SC mayassign to itComposition:

(1) Chief Justice- as ex officio Chairman(2) Secretary of Justice } as ex officio members(3) A representative of the Congress }(4) A representative of the Integrated Bar ]as regular members(5) A professor of law ](6) A retired member of the SC ](7) A representative of the private sector ]- Term:

The regular members of the Council shall be appointed by the President fora term of 4 years with the consent of the Commission on Appointments.

(2) ARTICLE VIII, Sec. 3 – “The Judiciary shall enjoy fiscal autonomy. Appropriations for the Judiciary may not be reduced by the legislature belowthe amount appropriated for the previous year and after approval, shall beautomatically and regularly released.”

Q: What is fiscal autonomy? A: Fiscal autonomy contemplates a guarantee of full flexibility to

allocate and utilize their resources with the wisdom and dispatch that theirneeds require. It recognizes the power and authority to levy, assess andcollect fees, fix rates of compensation not exceeding the highest ratesauthorized by law for compensation and pay plans of the govt and allocateand disburse such sums as may be provided by law or prescribed by them inthe course of the discharge of their functions. Fiscal autonomy meansfreedom from the outside control.

STATE PRINCIPLES AND POLICIES

ARTICLE II AND RELATED PROVISIONS), 1987

CONSITUTION

I. General Considerations:

Tañada v. Angara – By its very nature, Art . II are policies and principles thatmay guide the Legislature in the enactment of laws and the courts in itsinterpretation

Hence, as a general rule, these provisions are non-self-executin

BUT – a provision that is complete in itself, and provides sufficientrules for the exercise of rights, is self-executing

Thus, certain provisions under Art. II are self-executingEg.: Sec. 16 (See Oposa v. Factoran)

The 1st sections are entitled “Principles”, while the rest are entitled “Policies”However, there seems to be no clear distinction between what are

“Principles” and what are “Policies”.

II. Sec. 1, Art. Ii – “The Philippines I a democratic and republicanState. Sovereignty resides in the people and allgovernment authority emanates from them.

This is prescriptive of the kind of government that we should have – it shouldbe “democratic” and “republican”. We cannot have any other kind ofgovernment

Note that in International Law, it is not concerned with the kind ofgovernment. What is essential is that there is a government, since it is anessential element of the State.

“Republican” – hence, we have a representative type ofgovernment – we elect our leaders.

Thus, we have Art. V on Suffrage, and Art. IX-C on COMELEC

Relate to Art. XI, Sec 1 – “Public office is a public trust. Public officers andemployees must at all times be accountabels to the people, serve them withutmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest l ives.”

Because sovereignty resides in the people, public office is a publictrust. Hence, there is the sense of accountabil ity.

III. Sec. 2, Art II – “ The Philippines renounces war as aninstrument of national policy, adopts the generally




accepted principles of international law as part of the lawof the land and adhere to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations”

War is renounced as an instrument of national policy. Thus, no one has thepower to declare war

BUT: Congress can declare a “State of War”

Also, the President can only use military powers in case ofinvasion, rebellion, etc. He has no power to declare war.

BUT, does not that when we are attacked, we cannot engage inwar!

Constitution only renounces offensive war, not defensive war

This is one of the Rights of States:

1. Sovereignty and Independence2. Property and Jurisdiction3. Equality4. Existence and Self-Defense

5. Diplomatic IntercourseThis is constituent with the policy of the UN, of which we are a member.

“Adopt: the generally accepted principles of international law as part of thelaw of the land”. Reaffirms the Doctrine of Incorporation

Examples of generally accepted principles of International Law1. Pacta sunt servanda2. Rebus sic stantibus3. State Immunity from Suit4. Sovereign Equality if States

IV. Sec. 3, Art II – “Civilian authority is at all times, supreme overthe military. The AFP is the protector of the people andthe State. Its goal is to secure the sovereignty of the State

snd the integrity of the national territory. (CivilianSupremacy Clause)

It is expressly stated that it is SUPREME over the military

Role of the AFP:

1. Secure State sovereignty2. Secure integrity of the national territory

Q: The provision says the AFP is the “protector of the peopleand the State” Does this justify a coup d’ etat?

A: NO! This clause should not be lifted out of context. Lookat the 1st sentence of the provision – that the civilian authority is supremeover the military. Thus, the AFP’s role must be understood within thecontext of civilian supremacy.

INTEGRATED BAR OF THE PHILS. v. ZAMORA

FACTS : Estrada issued an LOI deploying the marines all over Metro Manila

HELD: (1) Civilian Supremacy Clause not Violated – The calling of themarines in this case constitutes permissible use of military assets for civilianenforcement. The limited participation of the Marine is evident in theprovisions of the LOI, which provides the metes and bounds of theirauthority. The local police forces are in charge of the visibility patrols – thereal authority belongs to the PNP, the Metro Manila Police Chief is theoverall leader of the PNP-Philippine Marines joint visibility patrols.

(2) Deployment of Marines to assist the PNP does not unmake the civiliancharacter of the PNP – the Marines render only assistance in conducting thepatrols. There is no insidious incursion of the military in civilian affairs. In

fact, military assistance to civilian authorities is rendered in the followingactuations: elections, administration of the Philippine Red Cross, relief andrescue operations during calamities and disasters, amateur sports,promotion and development, development of the culture and the arts,conservation of natural resources, implementation of the agrarian reformprogram, enforcement of customs laws, composite civilian-military lawenforcement activities, conduct of licensure examinations, conduct ofnationwide tests for elementary and highschool students, anti-drugenforcement activities, sanitary inspections, conduct of census work,administration of the Civil Aeronautics Board, assistance in installation ofweather forecasting devices, and peace and order policy formulation inLGUs.

V. Sec. 4, Art. II – “The prime duty of the Government is to serve

and protect the people. The Government may call uponthe people to defend the State and, in the fulfillmentthereof, all citizens may be required, under conditionsprovided by law, to render personal military on civilservice.”

Q: What is the Government’s Duty? A: To serve and protect the people

Service to the State




Q: It states that the government may call upon the people todefend the State. Does this amount to involuntary servitude? A: NO! This is an exception to the rule n involuntaryservitude:

Exceptions to the rule on involuntary servitude:1. Military service to defend the State

2. Penal punishment3. Assumption of jurisdiction of DOLE in labor cases4. Mariners and pilots5. Minor children under the patria potestas of parents

Note that the provisions says “PERSONAL service”Thus, one cannot hire mercenaries to take one’s place.

VI. Sec. 16, Art. II – “The State shall protect and advance the rightof the people to a balanced and healthful ecology inaccord with the rhythm and harmony of nature.”

Q: This refers to a right of the people. Why is this

found in Art. II and not in Art. III (Bill of Rights)?

A: This right belongs to a dif ferent category of rights! – Oposa v. Factoran (224 SCRA 792, 1993)

HELD: While this right is found under theDeclaration of Principles and State Polivies, it does notfollow that it is less important than any of the c ivil andpolitical rights under the Bill of Rights. This right belongsto a different category of rights, since it concerns nothingless than self preservation and self- perpetuation, theadvance of which may be said to predate all governmentsand Constitutions, since they are presumed to exist fromthe inception of humankind.

This is self-executing provision! (Oposa v. Factoran) Thus, itsviolation gives rise to a cause of action.

In relation to the Preferential Right of Subsistence Fishermen to theUse of Communal Marine and Fishing Resources

Art. XIII, Sec. 7 – “ The State shall protect the rights ofsubsistence fishermen, especially of local communities, tothe preferential use of communal marine and fishingresources, both inland and offshore.”

TANO v. SOCRATES (GR. 110249, 21 Aug. 1997)

FACTS: The Province of Palawan and City of Pierto Princesa enactedordinances prohibiting the catching and exportation of live tropical fishes.Some fishermen were apprehended for violating said ordinances, They nowchallenge the constitutionality of said ordinances, invoking their preferentialrights as subsistence fishermen to the use of our communal marine

resources.HELD: The preferential rights of subsistence fishermen to the use of marineresources is not absolute. Marine resources, per the Regalian Dontrine andunder Art. XII, Sec. 2, belongs to the State, and their exploration,development and utilization shall be under the State’s full control andsupervision. It is a policy enshrined in the Constitution that the State has theduty to protect and advance the right of the people to a balanced andhealthful ecology in accord with the rhythm and harmony of nature. Theordinances are meant precise to this, so that the enjoyment of our resourcesmay be guaranteed for the present and future generations. The right to abalanced and healthful ecology carries with it a correlative duty to refrainfrom impairing the environment.

VII. Provisions on Economic Policy1. Art. XII, Sec. 10(2) – “In the grant of rights, privileges, and

concessions covering the national economy andpatrimony, the State shall give preference to qualifiedFilipinos”

This is known as the “Filipino First Policy”

MANILA PRINCE HOTEL v. GSIS (GR. 118295, 02 May 1997, 267 SCRA402)

FACTS: The Manila Hotel, which was previously owned by a USCorporation, was then owned by GSIS. Pursuant to the policy ofPrivatization, the GSIS held it up for bidding. The Filipino Corporation lost.However, it offered to match the bid of the winning foreign corporation.

HELD: (1) Art. XI, Sec. 10 (2) is a self-executing provision. It is amandatory, positive command that is complete in itself and which needs nofurther guidelines or implementing laws or rules for its enforcement, it doesnot require any legislation to put it in operation.

(2) The word “patrimony” means heritage. Heritage includes not only naturalresources but also our national and cultural heritage. While the Manila Hotelwas not originally Filipino, it has become truly Filipino, with its own history. Itis a mute witness to our history.




2. Art. II, Sec. 19 – “The State shall develop a self-reliant andindependent national economy effectively controlled byFilipinos”

TAÑADA v. ANGARA (272 SCRA 18, [1997])

HELD: This economic policy does not rule out the entry of foreigninvestments, goods, and services, nor does it contemplate “economicexclusion” or “mendicancy in the international community”. Aside fromenvisioning a trade policy based on “equality and reciprocity”, thefundamental law encourages industries that are “competitive in bothedomestic and foreign markets”, thereby demonstrating a clear policy againsta sheltered domestic trade environment, but one in favor of the gradualdevelopment of robust industries that can compete with the best in theforeign market.

VIII. Provisions on Education

Academic Freedom – Art. X IV, Sec. 5 (2) – “Academic freedomshall be enjoyed in all institutions of higher learning.”

Note that the provision says “institutions of higher

learning”This refers to the tertiary level only!

Q: What is “academic Freedom”?

A: This is the right of the school or college to dictatefor itself, its aims and objectives, and how best toattain them – free from outside coercion orinterference save possible when the overridingpublic welfare calls fro some restraint. It has awide sphere of autonomy. (University of SanAgustin v. CA [23 SCRA 761])

Subsumed in the tern academic freedom is the freedom to

determine, on academic grounds, the following:1. Who may teach?

This refers to the faculty

2. What may be taught?

This refers to the subject and courses tobe offered

3. How it shall be taught?

This refers to the method of teaching

4. Who may be admitted to study?

This refers to the students

Right of the School to Determine Who may be Admitted to Study

Thus, mandamus would not lie to compel a school toaccept a student

BUT: once the school admitted the student, there is now acontract between them – this a contract with PUBLICINTEREST

Thus, the school may not arbitrarily dismiss orexpel a student – it should be based on either:

1. Failure to meet minimum academicrequirements prescribed for theschool or for the subject;

2. Violation of the school’s rules ofdiscipline

Also, the school must conduct an investigation –it must observe due process to establish theculpability of the student

UP BOARD OF REGENTS v. CA (GR. 134625, 31 Aug. 1999)

FACTS: Aroklaswamy Willuan Margaret Celine was given a masteral degreeand was allowed to graduate. Subsequently , however, it was discoveredthat her thesis was plagiarized. Thus, UP revoked her degree.

HELD: If an institution of higher learning can decide who can and whocannot study in it, it can also determine on whom it can convey the honorand distinction of being its graduates. If the conferment of an honor ordistinction was obtained through fraud, a university can revoke or withdrawsuch honor or distinction. This freedom does not terminate upon a student’sgraduation, since it is precisely the “graduation” that is in question.

Art. XIV, Sec. 4(1) – “The State recognizes the complementary role of pub licand private institution in the educational system and shall exercisereasonable supervision and regulation of all educational institutions”

This deals with the State’s power to regulate educationalinstitutions

MIRIAM COLLEGE FOUNDATION v. CA (348 SCRA 265, 15 Dec. 2000)




HELD: The power of the State to regulate educational institutions is subjectto the requirement of reasonableness. Moreover, what is allowed is only theregulation and supervision of educational institutions not the deprivation oftheir rights.

IX. Rights of Indigenous Peoples

CRUZ v. SECRETARY of DENR (GR. 135385, 06 Dec 2000)

FACTS: The constitutionality of RA 8371 (Indigenous Peoples Reform Act)was quesrioned. The SC en banc voted 7-7, hence, since the presumptionis for constitutionality, such presumption was not overthrown, and the lawwas declared unconstitutional. Each justice wrote a separate opinion, andall opinions form part of the decision.

SALIENT POINTS

1. Nature of RA 8371(Separate Opinion of J. Puno)RA 8371:

(1) Recognizes the existence of the indigenous culturalcommunities (ICCs) or indigenous peoples (IPs) as a

distinct sector in the Philippine society(2) Grants them the ownership and possession of their

ancestral domains and ancestral lands, and defines theextent of these lands and domains,

(3) Gives the indigenous concept of ownership undercustomary law which traces its origin to native title.

2. Definition and Distinction ICCs/IPs (Separate Opinion ofJ. Kapunan)

Sec. 3, RA 8371 – IPs/ICCs “refer to a group of people orhomogenous societies identified by self-ascription andascription of others, who have continuously lived as organizedcommunity on communally bounded and defined territory, andwho have, under claims of ownership since time immemorial,occupied, possessed and utilized such territories, sharingcommon bonds of language, customs, traditions, and otherdistinctive cultural traits, or who have, through resistance topolitical, social and cultural inroads of colonization, non-indigenous religions and cultures, became historicallydifferentiated from the majority of Filipinos.

NOTE: There is really no difference between the 2 terms, except:

ICCs – the term used in the Constitution

IPs – the term used in the international community and the UN

NOTE: The terms are always used in the plural form

3. Ancestral Domain and Ancestral Lands, Definition andNature (Separate Opinion of J. Puno)

Nature:: These are private property of indigenous peoples – it does notconstitute part of the land of the public domain

Definitions:(1) Ancestral Domain – Sec. 3(a), IPRA

Ancestral Domain all areas belonging to ICCs/ IPs held undera claim of ownership, occupied or possessed by ICCs/IPs bythemselves or through their ancestors, communally orindividually since time immemorial, continuously until thepresent, except when interrupted by war, force majeure ordisplacement by force, deceit, stealth or as a consequence ofgovernment projects or any other voluntary dealings withgovernment and/or private individuals or corporations

It comprise lands, inland waters, coastal areas, and naturalresources therein, including ancestral lands, forests, pasture,

residential, agricultural and other lands whether alienable ornot, hunting grounds, burial grounds, worship areas, bodies ofwater, mineral and other natural resources.

(2) Ancestral Land - Sec. 3(b), IPRA

These are lands held by the ICCs/IPs under the sameconditions as ancestral domains except that these are limitedto lands and that these land are not merely occupied andpossessed but are also utilized by them under claims ofindividual or traditional group ownership.

Thus, Ancestral Domain is a broader concept – it includes Ancestral Lands

4. Acquisition by ICCs/IPs of their Rights to theirAncestral Domains and Lands (Separate Opinion of J.Puno)

2 ways:

(1) By Native Title – over both Ancestral Domain and Ancestral Lands

(2) By Torrens Title under the Public Land Act – over Ancestral Lands only.




5. Native Title, Concept (Separate Opinion of J. Puno)

This refers to the ICCs/IPs pre-conquered rights to landsand domains held under a claim of private ownership as far back asmemory reaches.

Theses lands are deemed NEVER to have been publiclands and are presumed to have been held privately since beforethe Spanish Conquest.

This right of private ownership is peculiarly granted toICCs/IPs over their Ancestral Lands and Domains.

Formal recognition of this right is embodies in a Certificateof Ancestral Domain Title (CADT)

A CADT is just like a Torrens Title – it is evidence ofprivate ownership of land by native title.

6. Ownership by Acquisitive Prescription v. Ownership byNative Title (Separate Opinion of J. Kapunan)

Ownership by Acquisitive Prescription

Involves a conversion of the property’s characterfrom alienable public l and to private land

Thus, there is a transfer for title from the State toa private person

Meaning, the land is originally public land, whichis converted to private

Note: This requires that the land is alienable

Public Land – Art. XII, sec. 3 – “Lands of the publicdomain are classified into agricultural, forest or timber,mineral lands, and national parks”

Of these, only agricultural lands are alienableRequirement for Acquisitive Prescription – the private individual must havepossessed the land open, continuously,exclusively, adversely, and notoriously,in the concept of an owner, for either ofthe following periods:

(1) 30 years – bad faith

(2) 10 years – good faith

Ownership by Native Title

Here, the land has been held by itspossessor and his predecessor-in-interest in the concept of an owner sincetime immemorialThus, the land is notacquired from the State – there was no

transfer from the StateThe land is private in character as far

back as memory reaches.

7. Jura Regalia – requires that private title to land mustbe traced to some grant – express or implied – fromthe Spanish Crown or its successors – the AmericanColonial Government and after, the PhilippineGovernment.

Q: Does jura regalia negate native title?

A: NO!

In Cariño v. Insular Government, the SC has held that

when as far back as testimony or memory goes, the land has beenheld by individuals under a claim of private ownership, it will bepresumed to have been held in the same way from before theSpanish conquest, and never to have been public land.

Native title is an exception to jura regalia.

Art. XI I, Sec 2. – “All lands of the public domain, waters, minerals,coal, petroleum, and other mineral oils, all forces of potentialenergy, fisheries, forest or timber, wildlife, flora and fauna and othernatural resources are owned by the State”

This is the recognition of the Doctrine of Jura Regalia

ELECTION LAW

Significant Laws

BP 881 – Omnibus Election Code

RA 6646 – Electoral Reform Law of 1987

RA 7166

RA9006 – Fair Election Act

RA 9189 – Absentee Voter’s Act of 2003




Election Process divided into 3 stages:

(1) Pre-election

(2) During election

(3) Post Election

PRE-ELECTION STAGE

Registration of Voters

Q: Who may register? A: Only those who are qualified .

VOTER’S QUALIFICATIONS

Art. V, Sec. 1 – “Suffrage may be exercised by all citizens of the Philippinesnot otherwise disqualified by law, who are at least eighteen years of age andwho shall have resided in the Philippines for at least one year and in theplace wherein they propose to vote for at least six months preceding theelection. No literacy, property or other substantive requirement shall beimposed on the exercise of suffrage.”

(1) citizens of the Philippines

(2) not otherwise disqualified by law

(3) at least 18 years of age

(4) resident of the Philippines for at least one year and of the place whereinthey propose to vote for at least six months immediately preceding theelections

Election Period: 90 days before the day of the election and shall end 30 daysthereafter

-Registration

Art. V. Sec 1

-Political Parties

Art. IX-C, Sec 2(5)

-Filing of Certificate ofCandidacy

Sec. 79(A) OEC

Sec. 73 OEC

Monsale v. Nico

Sec. 66 OEC

PNOC-EDC v.

-Campaign Period

-Substitution ofCandidates

Sec. 77 OEC

Sec. 12 RA 9006

NLRC

Sec. 26 OEC

COMELECResolution

Miranda v. Abaya

-Disqualification Cases

Sec. 68 OEC

Sec. 69 OEC (5 days)Sec. 78 OEC (25

days)

Q: Is there an exception to the residence qualification?

A: Yes. RA 9189 (Absentee Voter’s Act of 2003)

MACALINTAL v. COMELEC

HELD: Under the ABSENTEE VOTER’S ACT OF 2003, overseas absenteevoters are allowed to vote for President, Vice-President, Senators and Party-List representatives. This is a clear intent to enfranchise Filipinos abroad, to

allow them to have a voice in the selection of our leaders. This refers toIMMIGRANTS and those who acquire the right to reside therein. It does notpertain to NATURALIZED CITIZENS. However, there must be an affidavitexecuted by these Filipinos abroad that they will return and resumeresidence in the Philippines within 3 years.

! This is an exception to residence qualification

! For purposes of election law, one’s domicile is that to which theConstitution refers when it speaks of residence

Section 8, BP 881

! Failure of Elections

Sec. 6 OEC

Sec. 4 RA 7166

Mitmug v.COMELEC

! Pre-Proclamation

Sec. 241,242,243

Sec. 4 (70 Art. VII

Sec. 17 Art. VII

Sec. 2(2) Art. IX-C

! Election Protest

Counter protest




OEC

Sec. 15, RA 7166

! Effects ofDisqualification

Sec. 6, RA 7166

Guerrero v.COMELEC

Loong v.COMELEC

Salcedo v.COMELEC

Tecson v.COMELEC

Kho v. COMELEC

! Quo Warranto

! Effect of Death

De Castro v. COMELECSantiago v. FVR

Art. V, Sec. 2 – “The Congress shall provide a system for securingthe secrecy and sanctity of the ballot as well as a system forabsentee voting by qualified Filipinos abroad xxx”

Provides for:

(1) A system for securing the security and sanctity of ballots

(2) A system for absentee voting

EXIT POLLS

The reason for securing the sanctity/secrecy of ballots is to avoid vote

buying through voter identification. What is forbidden is the association ofvoters with their respective votes for the purpose of assuring that votes havebeen cast in accordance with the instruction of a third party.

Exit polls conducted by ABS-CBN does not violate the sanctity of ballots.The contents of the ballots are not exposed. The revelation is notcompulsory but voluntary. Also, voters are not required to reveal theirnames. (ABS-CBN v. COMELEC)

Q: Even if you possess all qualifications and none of thedisqualifications. If you fail to register you will not be able/ allowedto vote. Is registration then an additional qualification of a voter?

A: No. It is merely a condition precedent for the exercise of the rightof suffrage. Registration laws are police power measures designedto ensure that only those who possess qualifications and none ofthe disqualifications can be allowed to exercise the right of suffrage.They are for the purpose of conducting an honest and free election.

REGISTRATION OF POLITICAL PARTIES

Q: Who has the power to register political parties?

A: COMELEC in accordance with Article IX-C, Sec. 2(5). It is theregistration with COMELEC that vests personality to an organization as apolitical party.

Art. IX-C, Sec. 2(5) – ORGANIZATIONS THAT MAY NOT BE REGISTERED AS POLITICAL PARTIES

(1) religious denominations and sects

(2) those which seek to achieve their goals through violence orunlawful means

(3) those which refuse to uphold the Constitution

(4) those which are supported by any foreign government

Art. IX-C, Sec. 2(5) Par. 2 – “ Financial contributions from foreigngovernments and their agencies to political parties, organization,coalitions, or candidates related to elections constitute interferencein national affairs, and when accepted, shall be an additionalground for the cancellation of their registration with theCommission, in addition to their penalties that may be prescribedby law.”

This constitute an election offense in accordance to Section 81,Omnibus election Code – “Intervention of foreigners- it shall be unlawful forany foreigners, whether judicial (juridical) or natural person, to aid anycandidate or political party, directly or indirectly, or to take part in or influence

in any manner any election, or to contribute or make any expenditure inconnection with any election campaign or partisan political activity.”

MULTI-PARTY SYSTEM

We are supposed to have a multi-party system as provided under Art. IX-C,Sec. 6 – “A free and open party system shall be allowed to evolve accordingto the free choice of the people, subject to the provisions of this Article.”

ELECTION PERIOD

Q: What is the election period?




A: Art. IX-C, Sec. 9 provides that “unless otherwise fixed by theCommission in special cases, the election period shall commence90 days before the day of election and shall end 30 daysthereafter.”

PROHIBITED ACTIVITIES DURING ELECTION PERIOD

(1) construction of public highways/ public works(2) public employment, appointment

CAMPAIGN PERIOD

- duration usually shorter- depends on the office aspired for-usually starts after the last day of filing of the certificate of candidacy andends one day before elections.ELECTION CAMPAIGN

! “Election Campaign” and “partisan political activity” are the same.They are used interchangeably.

! Under Sec. 79 (b) Omnibus Election Code, it refers to “an act

designed to promote the election or defeat of a particular candidateor candidates to a public office xxx”

Section 80, Omnibus Election Code – “ ELECTION CAMPAIGN ORPARTISAN POLITICAL ACTIVITY OUTSIDE CAMPAIGN PERIOD – It shallbe unlawful for any person, whether or not a voter or candidate, or for anyparty, or association of persons, to engage in an election campaign orpartisan political activity except during the campaign period: PROVIDED,that political parties may hold political conventions or meetings to nominatetheir official candidates within 30 days before the commencement of thecampaign period and 45 days for Presidential and Vice-Presidentialelection.”

GENERAL RULE: It is unlawful for any person to engage in an election

campaign except during the campaign period. Otherwise, it will be anelection offense.

EXCEPTION: Political parties may hold political conventions to nominatetheir candidates within 30 days before the commencement of the campaignperiod within 45 days for President and Vice-President elections.

CANDIDATE

Sec. 79(a) Omnibus Election Code – “ the term “CANDIDATE” refers toany person aspiring for or seeking an elective public office, who has filed a

certificate of candidacy by himself of through an accredited political party,aggroupment, or coalition of parties.”

Q: Does Pichay’s as “itanim sa senado” even before the elections andcampaign period violate Sec. 80 of the OEC?

A: No. At that time, Pichay has not yet filed his certificate ofcandidacy. He is not yet a candidate within the meaning of the law.Therefore, it cannot be considered as an election campaign.

FILING OF CERTIFICATE OF CANDIDACY

Sec.76. Omnibus Election Code – “Ministerial duty of receiving andacknowledging receipt – The Commission, provincial election supervisor,election registrar or officer designated by the Commission or the board ofelection inspectors under the succeeding section shall have the ministerialduty to receive and acknowledge receipt of the certificate of candidacy.”

It is a ministerial duty on the part of the election official to receive andacknowledge receipt of the certificate of candidacy. The question of whetheror not a person is disqualified belongs to another tribunal in an appropriatedisqualification case.

Q: Ka Roger went to Laguna to file COC. The election officer refusedbecause he seeks to achieve goals through violence. Valid?

A: No. It is the ministerial duty on the part of the election official toreceive and acknowledge receipt of the certificate of candidacy. Thequestion of whether or not a person is disqualified belongs to anothertribunal in an appropriate disqualification case.

PERIOD

Sec. 73, 1st sentence, OEC – “No person shall be eligible for any electivepublic office unless he files a sworn certificate of candidacy within the periodfixed herein xxx”

The certificate of candidacy must be filed within the period prescribed bylaw.

Late filing not allowed

Sec. 73, 3rd

sentence, OEC – “No person shall be eligible for more than oneoffice to be filled in the same election, and if he files his certificate ofcandidacy for more than one office, he shall not be eligible for any of themxxx”

The certificate of candidacy must be filed for only one office in an election




If a candidate files his certificate of candidacy for more than one office, heshall not be eligible for any of them.

WITHDRAWAL

Q: Can you withdraw the certificate of candidacy?

A: Yes. A person who has filed a certificate of candidacy may, prior tothe election, withdraw the same by submitting to the office concerned awritten declaration under oath. (Sec. 73, 2nd sentence, OEC)

MONSALE v. NICO

On the last day of filing of certificate of candidacy. March 31, Jose Monsalewithdrew his certificate of candidacy. April 1, campaign started. On April 2,he wanted to run again so he filed a written declaration withdrawing hiswithdrawal.

HELD: The withdrawal of the withdrawal of the certificate of candidacymade after the last day of filing is considered as filing of a new certificate ofcandidacy. Hence, it was not allowed since it was filed out of time.

EFFECT OF FILING OF A CERTIFICATE OF CANDIDACY

Appointive Officials

Sec. 66. OEC – “Candidates holding appointive office or position – Anyperson holding a public appointive office or position, including activemembers of the Armed Forces of the Philippines, and officers andemployees in the government-owned or controlled corporations, shall beconsidered ipso facto resigned from his office upon the filing of his certificateof candidacy.”

Q: X, a municipal treasurer filed a certificate of candidacy for governor.What is the effect?

A: He is considered ipso facto resigned.

Q: Is there a need to resign?

A: NO! The appointive offic ial is ipso facto resigned. Ipso facto meansno need to resign.

Q: What if after filing, the appointive official withdrew his certificate ofcandidacy. Can he be reinstated to his former position?

A: No! What matters is the moment of filing.

PNOC-EDC v. NLRC

HELD: The OEC does not distinguish between employees of GOCCs whichhave original charters and those that do not have one.

Elective Officials

Sec. 67, OEC – “Candidates holding elective office xxx” has already beenrepealed by the Repealing Clause of the Fair Election Act under Sec. 14, RA9006 – “Repealing Clause. Sec 67 and 85 0f the EOC xxx are herebyrepealed.”

Q: What governs now?

A: Secton 38, COMELEC Resolution 7767 (30 Nov 2006), Implementing Rules of the Fair Election Act – “Effect of Filing Certificate ofCandidacy of Elective Officials – Any elective official, whether national orlocal, who has filed a certificate of candidacy for the same or other officeshall not be considered resigned from his office.”

FARIÑAS v. EXECUTIVE SECRETARY

HELD: The provision of the Fair Election Act (RA 9006) to the extent that itrepealed Sec.67 of OEC is constitutional.

Q: Vice-governor filed a certificate of candidacy for governor. What isthe effect?

A: He is NOT ipso facto considered resigned. Sec. 67 OEC has beenrepealed by the FAIR ELECTION ACT (RA 9006). Any elective official,national or local shall not be considered as resigned from their electiveoffice.

SUBSTITUTION OF CANDIDATESQ: What are the GROUNDS for substitution of candidates?

A: Sec.77, OEC enumerates 3Grounds:

(1) Death(2) Disqualification(3) Withdrawal of another

Section 77. OEC – “Candidates in case of death, disqualification orwithdrawal of another. - If after the last day for the filing of certificates of




candidacy, an official candidate of a registered or accredited political partydies, withdraws or is disqualified for any cause, only a person belonging to,and certified by, the same political party may file a certificate of candidacy toreplace the candidate who died, withdrew or was disqualified. The substitutecandidate nominated by the political party concerned may file his certificateof candidacy for the office affected in accordance with the precedingsections not later than mid-day of the day of the election. If the death,

withdrawal or disqualification should occur between the day before theelection and mid-day of election day, said certificate may be filed with anyboard of election inspectors in the political subdivision where he is acandidate, or, in the case of candidates to be voted for by the entireelectorate of the country, with the Commission.”

Q: When may substitution take place?

A: Substitution can only take place on the first day of campaign perioduntil NOT later than mid-day of election day.

Q: Martin de Guzman, a candidate for mayor, died 3 days before theelection. Can his wife substitute him?

A: It depends. Under Sec. 77, only a candidate belonging to the same

political party may be substituted. By implication, an independentor those who do not belong to any political party may not be validlysubstituted because nobody will qualify.

Q: What are the requirements for substitution?

A: (1) nominated by the politica l party concerned

(2) certified by the political party concerned

Q: Martin de Guzman died while campaigning. His son substituted him.Voters on the day of the election wrote Martin de Guzman instead ofcasting the same in the name of his son, Joel de Guzman. Should thevotes be counted in favor of Joel?

A: Yes! As a general rule, under RA 9006, Sec. 12, the same will beconsidered as stray votes but will not invalidate the whole ballot.Exception is when the substitute carries the same family name, the saidprovision will not apply.

Section 12. RA 9006 – “Substitution of Candidates. In case of validsubstitutions after the official ballots have been printed, the votes cast for thesubstituted candidates shall be considered as stray votes but shall notinvalidate the whole ballot. For this purpose, the official ballots shall providespaces where the voters may write the name of the substitute candidates ifthey are voting for the latter: Provided, however, That if the substitutecandidate of the same family name, this provision shall not apply.”

MIRANDA v. ABAYA

FACTS: In the 1998 election, mayor Miranda of Isabela, already served 8consecutive terms, yet he still filed a certificate of candidacy. As a result, Abaya filed a disqualificat ion case. COMELEC then disqualified Mirandaand cancelled his certificate of candidacy. The son of Miranda, Joel, uponnomination of their political party, filed a certificate as a substitute. Joel

Miranda won.HELD: There was no valid substitution. COMELEC did not only disqualifyMiranda but also cancelled his certificate of candidacy. Therefore, hecannot be validly substituted. It is as if he was not a candidate.

Even on the most basic and fundamental principles, it is alreadyunderstood that the concept of a substitute presupposes the existence of theperson to be substituted, for how can a person take the place of somebodywho does not exist or who never was. The court has no other choice but torule that in all instances enumerated in Sec.77 of the OEC, the existence ofa valid certificate of candidacy seasonably filed is a requisite sine quo non.

All told, a disqualified candidate may only be substituted i f he had avalid certificate of candidacy in the first place because if the disqualified

candidate did not have a valid and seasonably filed COC, he is and was nota candidate at all. If a person was not a candidate, he cannot be substitutedunder Sec. 77 of the OEC.

The purpose of the law in requiring the filing of the COC and in fixing thetime limit therefore are:

(a) To enable the voters to know at least 60 days before the regularelection, the candidates among whom they are to make the choiceand

(b) To avoid confusion and inconvenience in the tabulation of the votescast

Q: Considering that Joel possesses all the qualifications, can he be

considered as a candidate in his own right? A: No. The certi ficate of candidacy was filed long after the last day offiling (Sec. 73, OEC)

The existence of a certificate of candidacy is a condition sine qua non underSection 77.




Q: Since there was no valid substitution, should the candidate whoobtained the second highest vote be proclaimed?

A: No. Under the doctrine on the rejection of second placer, thesecond placer is just like that – second placer. He was not the choice of theelectorate. The wreath (crown) of victory cannot be transferred to therepudiated loser. (Cayat v. COMELEC citing Butch Aquino v. COMELEC

and Sunga v. COMELEC)Q: Who will now assume the position of mayorship?

A: Following the rule on succession, it is the Vice-Mayor.

LABO DOCTRINE

The thrust is what to do with the votes cast for a disqualified candidate.Should they be considered as stray votes?

SC: No! That would disenfranchise the majority. The votes cast for thedisqualified are not stray votes they are valid votes only that the candidatewas later on found to be disqualified.

It would have been different if his disqualification was so apparent,so notorious, so much so that the people, notwithstanding that they knewhim to be disqualified, they still voted for him in which case the votes cast forhim shall be considered as protest votes. Protest votes are considered asstray votes. But not in this case, where the people of Baguio voted for Laboonly to find out that he is disqualified.

You cannot apply Labo Doctrine in Party-List because of Section 10, RA7941

CAYAT v. COMELEC

FACTS: Rev. Fr. Nardo Cayat ran for Mayor. Palileng, his opponent, foundout that Cayat, before the elections, was previously convicted of acts of

lasciviousness although he was granted probation. His candidacy was thenquestioned in a disqualification case invoking Section 40 pf the LGC.(Disqualification – The following persons are disqualified from running forany elective local position: (a) those sentenced by final judgment for anoffense involving moral turpitude or for an offense punishable by one (1)year or more of imprisonment, within (2) years after serving sentence ; xxx) .COMELEC disqualified Cayat on the ground of conviction of an offenseinvolving moral turpitude. However, Cayat alleged that he did not receive acopy of the judgment. That decision disqualifying Cayat became final even 2weeks before the election. Still, Cayat won in the election. Palileng claimedthat since Cayat is disqualified, he should be the one proclaimed.

HELD: The Court agreed and did not apply the doctrine of the rejection ofthe second placer. The one who obtained the second highest number ofvotes was the one actually proclaimed. This is very peculiar because here,there is only one candidate. Since Cayat was disqualified, it is as if he is nota candidate. Hence, there is no second placer here.

The doctrine of the rejection of second placer is not applicable because of

Sec.6 of RA 6646 Also, under Section 6, RA 6646 (Electoral Reform Law of 1987 – Effect ofdisqualification) which contemplates of 2 situations, it is the 1st sentencewhich applies to Cayat. He was declared by final judgment, to bedisqualified because the decision attained finality even 2 weeks before theelection. He shall therefore not be voted for and the votes cast for him shallnot be counted.

The second sentence contemplates that there was a disqualification casefiled before the COMELEC but for whatever reason, COMELEC was notable to render a decision before the election and such candidate won in theelection, in which case, the court or Commission shall continue with the trialand hearing of the election, inquiry or protest.

DISQUALIFICATIONS/REMEDIES BEFORE ELECTION

Any disqualifica tion filed before the election, whether pursuant to Sections68, 69 and 78 of OEC, the jurisdiction is with the COMELEC

(1) Section 68, OEC – “Disqualifications. - Any candidate who, in anaction or protest in which he is a party is declared by final decisionof a competent court guilty of, or found by the Commission ofhaving:

(a) given money or other material consideration to influence, induceor corrupt the voters or public officials performing electoralfunctions;

(b) committed acts of terrorism to enhance his candidacy;

(c) spent in his election campaign an amount in excess of thatallowed by this Code;

(d) solicited, received or made any contribution prohibited underSections 89, 95, 96, 97 and 104; or

(e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d,e, k, v, and cc, subparagraph 6,




shall be disqualified from continuing as a candidate, or if he hasbeen elected, from holding the office.”

Any person who is a permanent resident of or an immigrant to a foreigncountry shall not be qualified to run for any elective office under this Code,unless said person has waived his status as permanent resident orimmigrant of a foreign country in accordance with the residence requirement

provided for in the election laws.Violation of election laws is without prejudice to the filing of criminal action.

(2) Section 69, OEC – “Nuisance candidates. - The Commission maymotu proprio or upon a verified petition of an interested party, refuse to givedue course to or cancel a certificate of candidacy if the candidate is anuisance candidate.”

Q: Who is NUISANCE CANDIDATE ?

A: A nuisance candidate is a candidate who has no bona fide intentionto run, his purpose is merely to put the election process in mockery ordisrepute or to cause confusion among the voters by the similarity of thenames of the registered candidates or by other circumstances or acts

intended to prevent a faithful determination of the true will of the electorate.(Bautista v. COMELEC)

Period to file a petition

Within five (5) days from the last day of filing of the certificate of candidacyassuming that COMELEC did not act motu proprio.

(3) Section 78, OEC – “Petition to deny due course to or cancel acertificate of candidacy. - A verified petition seeking to deny due course or tocancel a certificate of candidacy may be filed by the person exclusively onthe ground that any material representation contained therein as requiredunder Section 74 hereof is false. Xxx”

Period to file a petition

Within twenty-five (25) days from the time the candidate filed his certificateof candidacy/ from the date the candidate alleged to have mademisrepresentation in the COC filed.

LOONG v. COMELEC

FACTS: Loong was a candidate for Vice-Governor in ARMM. There was anelection held but there was yet no proclamation. Eventually, it was found outthat Loong was still underage. Can the petition to disqualify Loong on theground of material misrepresentation prosper?

HELD: No. The petition was filed out of time. The disqualification caseunder Sec. 78 should be filed within 25 days from the date the candidatewho made the misrepresentation filed his certificate of candidacy, not on thedate of discovery. The 25-day period is mandatory.

Q: What then is the remedy?

A: There is a GAP in the law, which must be addressed by Congress.

SALCEDO v. COMLELEC

HELD: Material misrepresentation refers to the QUALIFICATIONS of theelective official for the elective office and NOT to any innocuous mistake.There must be a deliberate intent to deceive the people to one’s qualificationfor public office.

TECSON v. COMELEC

FACTS: A disqualification case was filed against FPJ in accordance withSec. 78 on the ground of material representation as to the citizenship.

HELD: There was no material misrepresentat ion. The misrepresentat ionmust not only be material. There must also be a deliberate intent to mislead

or deceive as to one’s qualification to public office.

EFFECT OF DISQUALIFICATION CASES

Section 6. RA 6646 – “Effect of Disqualification Case. - Any candidate whohas been declared by final judgment to be disqualified shall not be voted for,and the votes cast for him shall not be counted. If for any reason a candidateis not declared by final judgment before an election to be disqualified and heis voted for and receives the winning number of votes in such election, theCourt or Commission shall continue with the trial and hearing of the action,inquiry, or protest and, upon motion of the complainant or any intervenor,may during the pendency thereof order the suspension of the proclamationof such candidate whenever the evidence of his guilt is strong.”

ROMUALDEZ-MARCOS v. COMELEC

There was yet no proclamation, hence not yet a member of the HOR.COMELEC still has jurisdictom

GUERRERO v. COMELEC

Fariñas was elected, proclaimed and took his oath. The COMELEC ousteditself of jurisdiction. SC upheld COMELEC. It was recognition of the powerof the HRET and the constitutional boundaries.




Election – 7am – 3pm, then counting, members of Board of Canvassers

Return usually 7 copies:

(1)COMELEC

(2)Treasurer

(3)Municipal Judge

The idea is that in case of lost return, they can refer to the other copies.

Number of votes written in words and number

POST ELECTION

PRE-PROCLAMATION CASE

Q: After election, but before proclamation, what is the remedy?

A: Pre-proclamation case. But this presupposes that there was

electionQ: After proclamation, what is the remedy?

A: (1) Election Protest

(2) Quo Warranto

In pre-proclamation cases, the governing provisions are Section 241, 242,243 OEC.

Section 241, OEC – “Definition. - A pre-proclamation controversy refers toany question pertaining to or affecting the proceedings of the board ofcanvassers which may be raised by any candidate or by any registeredpolitical party or coalition of political parties before the board or directly withthe Commission, or any matter raised under Sections 233, 234, 235 and 236

in relation to the preparation, transmission, receipt, custody and appreciationof the election returns.”

Section 242, OEC – “Commission's exclusive jurisdiction of all pre- proclamation controversies. - The Commission shall have exclusive jurisdiction o f all pre-proclamation controversies. It may motu proprio or uponwritten petition, and after due notice and hearing, order the partial or totalsuspension of the proclamation of any candidate-elect or annual partially ortotally any proclamation, if one has been made, as the evidence shallwarrant in accordance with the succeeding sections.”

Section 243,OEC – “Issues that may be raised in pre-proclamationcontroversy. - The following shall be proper issues that may be raised in apre-proclamation controversy:

(a) Illegal composition or proceedings of the board of canvassers;

(b) The canvassed election returns are incomplete, contain materialdefects, appear to be tampered with or falsified, or contain

discrepancies in the same returns or in other authentic copiesthereof as mentioned in Sections 233, 234, 235 and 236 of thisCode;

(c) The election returns were prepared under duress, threats,coercion, or intimidation, or they are obviously manufactured or notauthentic; and

(d) When substitute or fraudulent returns in controverted pollingplaces were canvassed, the results of which materially affected thestanding of the aggrieved candidate or candidates.

Section 243, OEC refers to issues that may ne raised in a pre-proclamationcontroversy. There are four (4) grounds, which can be summarized into two(2):

(1) illegality in the composition of proceedings of the BOC – (a)

(2) illegality in the preparation, transmission, receipt, custody, orappreciation of election returns – (b, c,d)

Eg. Ballot box switching not proper for pre-proclamation case; does not fallunder any of the instances under Art. 243 of OEC.

Once a candidate has been proclaimed, the pending pre-proclamation caseshould be dismissed. After all, the issues pending in the pre-proclamationcase will also be raised in the subsequent Election Protest or Quo Warrantocase filed.

DOCTRINE OF STATISTICAL IMPROBABILITY – LAGUMBAYDONCTRINE

Where there exist similarities in the tallies in favor of candidates belonging toone party, and results in the blanking out of the opposing candidates, theelection returns are obviously manufactured on the basis of the doctrine ofstatistical improbability.

As watcher, object to the inc lusion of the canvass of the particular return onthe ground that the election returns are obviously manufactured on the basis



Political Law Review Notes (Atty. Edwin Sandoval)

Prepared by: Atty Joan P. Gamboa61

of the doctrine of statistical improbability. If still included, it can result to apre-proclamation controversy.

Pre-proclamation cases is NOT allowed in barangay elections.

Section 15, RA 7166 – “Pre-proclamation Cases Not Allowed in Electionsfor President Vice-President, Senator, and Member of the House ofRepresentatives. - For purposes of the elections for President, Vice-

President, Senator and Member of the House of Representatives, no pre-proclamation cases shall be allowed on matters relating to the preparation,transmission, receipt, custody and appreciation of the election returns or thecertificates of canvass, as the case may be. However, this does not precludethe authority of the appropriate canvassing body motu propio or upon writtencomplaint of an interested person to correct manifest errors in the certificateof canvass or election returns before it. “

Questions affecting the composition or proceedings of the board ofcanvassers may be initiated in the board or directly with the Commission inaccordance with Section 19 hereof.

Any objection on the election returns before the city or municipal board ofcanvassers, or on the municipal certificates of canvass before the provincial

board of canvassers or district boards of canvassers in Metro Manila Area,shall be specifically noticed in the minutes of their respective proceedings.

For purposes of election of –

(1) President(2) Vice-President(3) Senators(4) House of RepresentativesThere can be no pre-proclamation case on matters relating totransmission, custody of election returns; the only issue that can beraised – illegality of the composition or proceeding of the Board ofCanvassers

Therefore, there can only be a pre-proclamation case on the following:

(1) Municipal officials

(2) City officials

(3) Provincial officials

Autonomous off icials

FAILURE OF ELECTION

Section 6, OEC Failure of election. - If, on account of force majeure,violence, terrorism, fraud, or other analogous causes the election in any

polling place has not been held on the date fixed, or had been suspendedbefore the hour fixed by law for the closing of the voting, or after the votingand during the preparation and the transmission of the election returns or inthe custody or canvass thereof, such election results in a failure to elect, andin any of such cases the failure or suspension of election would affect theresult of the election, the Commission shall, on the basis of a verified petitionby any interested party and after due notice and hearing, call for the holding

or continuation of the election not held, suspended or which resulted in afailure to elect on a date reasonably close to the date of the election notheld, suspended or which resulted in a failure to elect but not later than thirtydays after the cessation of the cause of such postponement or suspensionof the election or failure to elect.

GROUNDS FOR FAILURE OF ELECTION

(1) Force majeure(2) Violence(3) Terrorism(4) Fraud(5) Analogous Causes

SITUATIONS

(1) No election

The election in any polling place has not been held on the datefixed on account of FVTFA

(2) Election is suspended

The election in any polling place has been suspended before thehour fixed by law for the closing of the voting on account of FVTFA

(3) There is a failure to elect

After the voting and during the preparation and t ransmission of theelection returns or to the custody or canvass thereof, such electionresults in a failure to elect on account of FVTFA; nobody emergedas winner

Q: What are the two (2) conditions that must concur before theCOMELEC can act on a verified petition seeking to declare a failure ofelection?

A: (1) no voting took place in the precinct

(2) on the date fixed by law or even if there was voting, the electionresulted in a failure to elect.




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Q: Where to file a petition to declare a failure of election?

A: COMELEC EN BANC. The majority of the Commission may grantthe petition and schedule special election in areas affected.

(Section 4, RA 7166 – “Postponement, Failure of election andspecial Elections – The postponement, declaration of failure of election andthe calling of special elections as provided in Sec. 5, 6, and 7 of the OEC

shall be decided by the Commission sitting en banc by a majority vote of itsMembers. The causes for the declaration of a failure of election may occurbefore or after the casting of votes or n the day of the election xxx”)

BANAGA v. COMELEC

Failure of election is the same with petition to annul election returns

General Rule: “xxx All such election cases shall be heard and decided indivision, provided that motions for reconsideration of decisions shall bedecided by the Commision en banc. (Art IX-C, Section 3)

Exception: A petition to declare a failure of election shall be heard by the

COMELEC en banc.]PRE-PROCLAMATION v. FAILURE OF ELECTION

In pre-proclamation, there is actually an election that took place

In failure of election, there was no election at all or it was suspended or therewas a failure to elect.

MITMUG v. COMELEC

There were 3 candidates for mayor. The total registered voters is 10, 000.Only 3,000 voted. There was a low turn out of voters. A petition was filed todeclare a failure of election

HELD: The petition cannot be granted. There was an election that took

place. The law does not require the majority of voters to cast their votes.There can onlybe a failure of election if the will of the people is defiled andcannot be determined.

PROCLAMATION

Q: Who proclaims the winner?

A: (1) Board of Canvassers

(2) President, Vice-President Elections: Congress acting as Boardof Canvassers

(3) Senators: COMELEC

(4) Congressman

(a) Lone Congressional district – Provincial BOC

(b) Several districts – District BOC

It is the ministerial duty of the BOC to proclaim the winning candidate. It hasno discretion whether to proclaim or not. After the last official act, which isthe proclamation, the BOC becomes functus officio and may not validlyreconvene motu proprio. However, when the COMELEC ordered thereconveyance of the BOC, it may.

POST-ELECTION REMEDIES –After election

ELECTION PROTEST v. QUO WARRANTO

ELECTION PROTEST

- who really won in the election?,determination of real choice ofelectorate

- only the candidate running for thesame can file

- if the protestant wins, he shall beproclaimed and shall replace thepreviously proclaimed winner.

- eg. coercion, terrorism, ballot boxswitching, vote buying.

QUO WARRANTO

- whether the winning candidate isqualified, eligibility or lack ofqualifications of the candidate

- If the winning candidate isdisqualified, he shall be removedand automatic succession shallapply unless what is removed is nota local elective official, in whichcase, the position shall be declaredvacant, until there is a specialelection to fill the vacancy.

-eg. Citizenship, residence,disloyalty to Republic of thePhilippines

DUMAYAS v. COMELEC

Election Protest is a contest between the defeated and winning candidateson the ground of frauds or irregularities in the casting and counting of theballots or in the preparation of returns. It resolves the question of who




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actually obtained the plurality of the legal votes and therefore is entitled tohold the office.

Quo warranto raises in issue the disloyalty or ineligibility of the winningcandidate. It is a proceeding to unseat the respondent from office but notnecessarily to install the petitioner in his place.

JURISDICTION

(1) President/ VP - SC en banc , actingas PresidentialElectoral Tribunal

(Art. VII, Sec. 4[7])

“sole judge”

- EP 30 days fromproclamation

QW 10 days fromproclamation

(2) Members of theCongress

-Senators

-Congressmen

-Senate ElectoralTribunal

-HR Electoral Tribunal(Art. VI, Sec. 17)

No appeal

Or Rule 65 (SpecialCivil Action onCertiorari)

-EP or QW

- 15 days afterproclamation

- 10 days afterproclamation

(3) Governor/ Vice-Governor

-COMELEC (Original)

(Art. IX-C, Sec. 2[2])

-SC (Appellate)

-10 days fromproclamation

(4) Regional/Provincial/City

-COMELEC (Original)

-SC (Appellate)

(5) Elective MunicipalOfficial

-RTC (Original)

(“trial courts of general jurisdiction”)

-COMELEC

(Appellate)

(Art. IX-C, Sec. 2[2])

(6) Elective BarangayOfficial

-MTC (Original)

(“trial courts of limited jurisdiction”)

-COMELEC(Appellate)

REYES v. RTC OF ORIENTAL MINDORO

From the decision of the COMELEC, file first a motion for reconsideration. Itis only the decision of COMELEC EN BANC that is reviewable by the SC.

TECSON v. COMELEC

Before the election, a petition was filed on the ground of materialmisrepresenta tion. COMELEC dismissed the petition. TECSON et. al.argued tha the jurisdiction with the SC.

HELD: Contest refers to “post-election” scenario and not pre-electionscenario. It shall consist of either an election protest or quo warranto whichare two (2) distinct remedies but with one objective, to unseat winningcandidate. SC has jurisdiction over election contests of President/Vice-President and NOT candidates. It does NOT include a petition qualifying acandidate for President/Vice-President. Sc is the sole judge forPresident/Vice-President and NOT over candidates for President/Vice-President. Hence, the action was dismissed for lack of jurisdiction andprematurity.

“election returns” – refers to election protest“qualification” – refers to quo warranto

GALIDO v. COMELEC

Notwithstanding the finality of COMELEC’s decision, the parties are NOTprecluded from filing a petition for certiorari with the SC.

FRIVALD0 v. COMELEC ; LOONG v. COMELEC

If the ground relied upon is lack of citizenship or disloyalty to the Republic,the period must be extended.




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EFFECT OF DEATH OF A PARTY

Q: What is the effect of death of a party in an election protest? Shouldit warrant the dismissal of the protest?

A: The death of the protestant neither constitutes a ground for thedismissal of the contest not ousts the trial court of its jurisdiction to decidethe election contest. An election protest involves both the private interests of

the rival candidates and the public interest in the final determination of thereal choice of the electorate, and for this reason, an election contestnecessarily survives the death of the protestant or the protestee. But whilethe right to public office is personal and exclusive to the public officer, anelection protest ins not purely personal and exclusive to the protestant or tothe protestee such that after the death of either would oust the court of allauthority to continue the protest proceedings. An election contest, after all,involves not merely conflicting private aspirations but is imbued withparamount public interests. (DE CASTRO v. COMELEC)

COUNTER-PROTEST – available to a winning candidate if his election isprotested.

A remedy available to a duly proclaimed winner in order to protect one’s

lead. Allege also the precinct where your opponent cheated.KHO v. COMELEC

Counter protest must be filed within 5 days from receipt of the copy of theprotest. The period is not only mandatory but also jurisdictional. It partakesthe nature of a counterclaim. So that the court is ousted of jurisdiction toentertain a counter protest belatedly filed.

If a counter protest was belatedly filed, but was erroneously admitted, theremedy is to file a motion to expunge the counter protest from the records. Ifnot expunged from the record, file a petition for certiorari under Rule 65.

ELECTION OFFENSE

Q: Who has jurisdiction over election offenses?

A: RTC, except in cases where there is failure to register to vote whichshall be under the MTC.

Section 268, OEC – “Jurisdiction of courts. - The regional trialcourt shall have the exclusive original jurisdiction to try and decide anycriminal action or proceedings for violation of this Code, except thoserelating to the offense of failure to register or failure to vote which shall beunder the jurisdiction of the metropolitan or municipal trial courts. From thedecision of the courts, appeal will lie as in other criminal cases.

Q: Who shall prosecute election offenses?

A: COMELEC not the fiscal unless the latter is deputized by theCOMELEC

Q: In case of public official, should COMELEC still prosecute?

A: COMELEC can still prosecute. It is not the personality of the

accused but the nature of the offense.INCLUSION/EXCLUSION PROCEEDINGS

- within the jurisdiction of MTC appealable to RTC

-RTC decision is not appealable

WHEN ELECTION PROTEST BECOMES MOOT

Defensor Santiago filed an Election Protest. Subsequently, she ran forSenator and won. She abandoned her protest when she ran for an officedifferent frim that of the President.

RULES ON APPRECIATION OF BALLOTS

(1) GENERAL RULE – After the elections, the liberal interpretation ruleshall be applied. IN CASE OF DOUBT, the rule in favor of the votebeing valid as to give effect to the will of the electorate shall befollowed.

(2) EQUITY OF INCUMBENT RULE – 2 or more candidates runningfor the same office, they bear the same first name, surname or bothand the voter in his ballot wrote only either of the 2, the vote shallbe appreciated in favor of the incumbent. If neither of them isincumbent, the votes shall be considered stray votes.

(3) IDEM SONANS RULE or SAME SOUNDS RULE – If the name ofthe candidate is misspelled by the voter, for as long as when it ispronounced, it sounds like the name of the candidate, the vote iscounted in the latter’s favor UNLESS it can be considered as

marking, in which case the entire ballot is invalid.

(4) DESCRIPTIO PERSONAE – rule is the same in idem sonans rule.

ADMINISTRATIVE LAW

- Promulgated by Pres. Aquino when she still had legislative powerspursuant to Article XIII, Section 6 (The incumbent President shall continue toexercise legislative powers until the First Congress is convened).

-took effect in 1989, only after 2 years.

The Code is a general law and incorporates into a unified document the




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major structural, functional and procedural principles of governance andembodies changes in administrative structures and procedures designed toserve the people (Ople v. Torres).

- The Code is divided into seven books:

Book 1 : Sovereignty and General AdministrationBook 2: Distibution of Powers of the Three Branches of the Government

Book 3: Office of the PresidentBook 4: Executive BranchBook 5: Constitutional CommissionsBook 6: National Government BudgetingBook 7: Administrative Procedure- includes the Civil Service Law.

Two important definitions of Administrative Law

1. Dean Roscoe Pound

it is that branch of modern law under the executive department of thegovernment, acting in quasi-legislative or quasi-judicial capacity, interfereswith the conduct of individual for the purpose of promoting the well being ofthe community.

2. Professor Goodnow

it is that part of public law which fixes the organization of the governmentand determines the competence of the authorities who execute the law andindicates to the individual remedies for the violation of his rights.

In both definitions, the focus is on the executive department acting in quasi-legislative and quasi-judicial functions.

THREE IMPORTANT DOCTRINES

(1) DOCTRINE OF QUALIFIED POLITICAL AGENCY

The members of the cabinets are deemed alter egos of thePresident so that their decision and acts performed in the regular course ofbusiness are deemed acts or decisions of the President UNLESS reprobatedby the President.

(2) EXHAUSTION OF ADMINISTRATIVE REMEDY

Whenever there is an available administrative remedy provided bylaw, no judicial recourse can be made until all such remedies have beenavailed of and exhausted.

(3) DOCTRINE OF PRIMARY JURISDICTION OR PRIOR RESORT

The courts cannot and will not resolve a controversy involving a

question, which is within the jurisdiction of an administrative tribunal.

ADMINISTRATIVE AGENCIES

· Generally, the function is EXECUTIVE

· It implements or enforces

Ex: COMELEC - main function is to enforce the laws relative to theconduct of election.

- This is an executive function.

· But the law may vest the agency quasi-judicial and quasi-legisla tivepowers.

GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES

-refers to the corporate governmental entity through which the functions ofthe government are exercised throughout the Philippines including variousarms through which political authority is made effective in the Philippines,whether pertaining to the autonomous regions, the provincial, city, municipalor barangay subdivisions or other forms of local government.

2 COMPONENTS:

(1) Corporate governmental entity, through which the functions ofgovernment are exercised throughout the Philippines.

(2) Various arms through which political authority is made effective in thePhilippines.

· Thus, LOCAL GOVERNMENTS are included in the definition ofGOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES

(a) They are referred to as “various arms through which politicalauthority is made effective in the Philippines” (ADMINISTRATIVECODE)

(b) They are referred to as “territorial and political subdivisions of theRepublic of the Philippines (Article X, Section 1, 1987CONSTITUTION).

“The territorial and political subdivisions of the Republic of thePhilippines are the provinces, cities, municipalities and barangays.There shall be autonomous regions in Muslim Mindanao and the




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Cordilleras.”

*Under the first component, whether the agency is an incorporated orunincorporated agency of the government is included in the definitions.

Q. Are government owned or controlled corporations (GOCC's) part ofthe definition of the GOVERNMENT OF THE REPUBLIC OF THEPHILIPPINES?

A. It depends -

(1) If the GOCC is performing governmental function, then it is part ofthe definition.

(2) If the GOCC is performing proprietary function, then it is not part ofthe definition.

Q. When is a GOCC deemed to be performing proprietary function?Governmental function?

A. If the purpose is to obtain special corporate benefits, or earnpecuniary profit intended for private benefit, advantage - the function is

proprietary. If it is in the interest of health, safety or the advancement ofpublic good and welfare affecting the public in general - the function isgovernmental.

VARIOUS ADMINISTRATIVE AGENCIES

AGENCY OF THE GOVERNMENT

- refers to any of the various units of the government, including adepartment, bureau, office, instrumentality, or governmentowned or controlled corporations, or a local government or

district unit therein. (Section

*LGU's are not under the control power of the President. It falls under thegeneral supervision of the President.

DEPARTMENT

- refers to man executive department created by law. (Section

2[7] Introductory Provisions E.O. 292)- Ex: DOJ, DENR, DOH

BUREAU

- any principal subdivision or unit of a department (Section 2 [8]Introductory Provisions E.O. 292)

- Ex: BIR under DOF, NBI under DOJ

OFFICE

- refers to any major functional unit of a department or bureauincluding regional offices.

- Ex: Regional Office of the Bureau of Lands.

3 IMPORTANT ADMINISTRATIVE RELATIONSHIPS

(Section 38, Chapter 7, Book IV)

(1) SUPERVISION AND CONTROL

“Supervision and Control shall include authority to act directlywhenever a specific function is entrusted by law or regulation to asubordinate; direct the performance of duty, restrain the commission of acts;review, approve, reverse or modify acts and decision of subordinate officialsor units; determine priorities in the execution of plans and programs; andprescribe standards, guidelines, plans and programs. Unless a differentmeaning is explicitly provided in the specific law governing the relationship ofparticular agencies, the word “control” shall encompass supervision and

control as defined in this paragraph.

(2) ADMINISTRATIVE SUPERVISION

“ Administrative Supervision which shall govern the administrativerelationship between a department or its equivalent and regulatory agenciesor other agencies as may be provided by law, shall be limited to the authorityof the department or its equivalent to generally oversee the operations ofsuch agencies and to insure that they are managed effectively, efficientlyand economically but without interference with day to day activities; orrequire the submission of reports and cause the conduct of management

ARTICLE VII, Section 17 ARTICLE X, Section 4

CONTROL is the power of thesuperior to direct theperformance of a duty,restrain the commission ofacts, review, revise, modify,reverse or alter the decisionsand even to substitute thesuperior’s own decision.

POWER OF GENEREALSUPERVISION means to generallyoversee, see to it that the localgovernments and their officials performtheir functions in accordance with law(no more than that)

CONTROL is the very heart ofthe power of the President.(Joson V. Torres)




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audit, performance evaluation and inspection to determine compliance withpolicies, standards and guidelines of the department, to take such actions asmay be necessary for the proper performance of official functions, includingrectification of violations, abuses and other forms of mal-administration, andto review and pass upon budget proposals such agencies but may notincrease or add to them.”

ATTACHMENT“This refers to the lateral relationship between the department or its

equivalent and the attached agency or corporation for purposes of policy andprogram coordination. The coordination may be accomplished by having thedepartment represented in the governing board of the attached agency orcorporation either as chairman or as a member, with or without voting rights.

If this is permitted by the charter, having the attached corporation oragency comply with a system of periodic reporting which shall reflect theprogress of programs and projects and having the department or itsequivalent provide general policies through its representative in the board,which shall serve as the framework for the internal policies of the attachedcorporation or agency.”

OTHER AGENCIESINSTRUMENTALITY

- refers to any agency of the National Government, not integratedwithin the department framework vested with special functions or jurisdiction by law, endowed with some if not all corporate powers,administering special funds, and enjoying operational autonomy,usually through a charter.

- this term includes regulatory agencies, chartered institutions andGOCC's. (Sec.2 [16], Introductory Provisions, E.O. 292)

REGULATORY AGENCY

- refers to any agency expressly vested with jurisdiction to

regulate, administer, or adjudicate matters affecting substantialrights and interests of private persons, the principal powers ofwhich are exercised by a collective body, such as acommission, board or council. (Sec. 2[4] IntroductoryProvisions, E.O. 292)

- Ex: PRC, NLRC, SEC, Insurance Commission

CHARTERED INSTITUTIONS

- refers to any agency organized or operating under a specialcharter, and vested by law with functions relating to specific

constitutional policies or objectives.

- this term includes the state universities and colleges and themonetary authority of the state. Section 2 [12] IntroductoryProvisions, E.O. 292)

Ex: BSP

GOVERNMENT-OWNED OR CONTROLLED CORPORATION- refers to any agency organized as a stock or non-stock

corporation, vested with functions relating to public needswhether governmental or proprietary in nature, and owned bythe government directly or through its instrumentalities eitherwholly or where applicable as in the case of stock corporationsto the extent of fifty-one (51%) percent of its capital stock xxx(Section 2[13] Introductory provisions, E.O. 292)

- Provided, the GOCC's may be further categorized by theDepartment of Budget, Civil Service Commission and theCommission on Audit for purposes of the exercise anddischarge of their respective powers, functions andresponsibilities with respect to such corporations.

· These instrumentali ties are NOT integrated to the departmentframework.

· They do not fall within the control power of the president over thedepartments.

· Under Article VII, Section 17, Instrumentalities are not included.

Q. What are the administrative relationships involved?

A. (1) Regulatory Agencies - mere administrative supervision, to overseewith no interference with the day-to-day operation.

Ex: the relationship between NLRC and Secretary of Labor (Verticalrelationship)

(2) Chartered Institution/GOCC - attachment, lateral relationshipinvolving planning and program coordination.

BEJA JR. V. COURT OF APPEALS

An attached agency enjoys more autonomy than an agency placedunder administrative supervision. It is free from departmentalized control.Likewise, an agency under administrative supervision has more autonomythan an agency placed under supervision and control.

ILLUSTRATION




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Delegation of Powers Conferment of Jurisdiction

QUASI- LEGISLATIVE QUASI JUDICIAL

ADMINISTRATIVE AGENCY

Administrative Regulations Jurisdiction Rules of Procedure

Legislative Interpretative Due Process

Supplemental Contingent Contempt Power

Appeals

POWERS AND FUNCTIONS OF ADMINISTRATIVE AGENCIES

Q. Generally, how will you describe the functions of an administrativeagency?

A. The functions of an administrative agency are to enforce, implement,administer and execute laws.

Q. What kind of function?

A. Executive. These agencies belong to the executive branch. They do notperform legislative and judicial functions. However, these agencies mayperform quasi-legislative and quasi-judicial functions.

Ex: COMELEC - to administer all laws relative to plebiscite,referendum, recall

CSC - to administer the Civil Service Law

Note: Not all administrative agencies perform all kind of functions.

Ex: NLRC - exercises in general quasi-judicial function

DOLE - the agency that administers labor law

SEC - has an executive function and quasi-legislative; no morequasi-judicial

LTFRB - has quasi-judicial function

CSC - has an executive, quasi-legislative and quasi-judicial

power

QUASI-LEGISLATIVE POWER

Q. What do you mean by Quasi-legislative?

A. It refers to the power or authority of an administrative agency topromulgate rules and regulations in order to implement a law or a given

legislative policy.Q. Other names?

A. (1) Rule-making power of an agency

(2) Power of Subordinate Legislation

· QUASI-LEGISLATIVE POWER includes the power to promulgate ADMINISTRATIVE REGULATIONS or IMPLEMENTING RULES AND REGULATIONS (IRR), which are pieces of subordinatelegislation called mini-laws, which may take the form of circulars ormemoranda, but which cannot prevail over the laws.

Q. In what capacity did the Secretary of Labor acted in promulgating therules and regulations implementing the Labor Code?

A. He acted in h is quasi-legis lative capac ity.

· In exercising quasi-legisla tive functions, the administrative agencyis acting like Congress but not to enact laws. They cannot havemore powers than Congress.

· An administrative agency may not exercise this quasi-legisla tivefunction unless it has been expressly delegated to it. It is adelegated power.

DOCTRINE OF DELEGATION OF POWERS

GENERAL RULE: A power that has already been delegated may no longer

be delegated.

EXCEPTIONS: Instances of Permissible Delegation of Powers:

(1) Delegation to the PEOPLE through plebiscite and referendum(2) Delegation of EMERGENCY POWERS to the President(3) Delegation to the President of TARIFF POWERS(4) Delegation to ADMINISTRATIVE BODIES(5) Delegation to the LOCAL GOVERNMENT

· The delegation to administrative bodies simply deals with Quasi-Legislative powers.




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Ex: Under Section 244, NIRC, “The Secretary of Finance, uponrecommendation of the Commissioner shall promulgate all needful rulesand regulations for the effective enforcement of the provisions of thiscode.”

- This is a delegation to the Secretary of Finance. Withoutthis delegated authority, the Secretary of Finance may notexercise the power.

· The delegation must be valid. Even if the power has beendelegated, if the delegation is invalid, the exercise of the powerbecomes an abdication of powers. Hence, it is not just a matter ofdelegating the power. The delegation must be valid.

TEST OF A VALID DELEGATION

(1) COMPLETENESS TEST: The law delegating the power must becomplete in all its terms and conditions when it leaves the Congress, sowhen it reaches the delegates, it will have nothing to do but to enforce it.

(2) SUFFICIENT STANDARD TEST: The law must offer a sufficientstandard, which are determinate, or at least determinable to specify thelimits of the delegate’s authority, announce the legislative policy and specifythe conditions under which is to be implemented.

KINDS OF ADMINISTRATIVE REGULATIONS

(1) LEGISLATIVE Regulation

a. Contingent

b. Supplemental

(2) INTERPRETATIVE Regulation

Q. What is their distinction? A. If the regulation is merely interpretative, i t will not require publication.

· When Article 2 of the New Civil Code refers to laws, these do notonly refer to those enacted by Congress but includes administrativeregulations promulgated by administrative bodies in their quasi-legislative functions except those which are merely internal orinterpretative in nature. (Tanada v. Tuvera)

Q. What are the REQUISITES OF A VALID ADMINISTRATIVEREGULATION?

A. (1) Its promulgation must be authorized by the legisla ture

(2) It must be within the scope of authority given by the legislature

(3) It must be promulgated in accordance with the prescribed procedure

(4) It must be reasonable

FIRST REQUISITE: its promulgation must be authorized by the legislature -meaning, there is a valid delegation of power.

SECOND REQUISITE: it must be within the scope of authority given by thelegislature.

- in the exercise of the delegated authority to promulgateadministrative regulations, the administrative agency cannotamend the main law it seeks to implement. Otherwise, thedelegate will act in excess of authority.

TOLEDO v. COMELEC Attorney Augusto Toledo, at the time of his appointment was

already 57 years old. Upon discovery, COMELEC nullified his appointmenton the ground that a provision in the Civil Service Rules on Personal Actionsand Policies provides that “no person shall be appointed or reinstated in theservice if he is already 57 years old, unless the President of the Philippines,President of the Senate, Speaker of the House of Representatives or theChief Justice of the Supreme Court, as the case may be, determines that hepossesses special qualifications and his services are needed.

SC: The provision on 57 year old person in the Revised Civil Service Rulesunder R.A. 2260 cannot be accounted validity. It is entirely a creation of CivilService Commission, having no basis in the law itself that it was meant toimplement. The power vested in the Civil Service Commission was toimplement the law or put it into effect, not to add to it, to carry the law intoeffect or execution; not to supply perceived omissions in it. By itsadministrative regulations, of course, the law itself cannot be extended; saidregulations cannot amend an act of Congress. The Civil ServiceCommission is not the Congress. It may not add anything to the Civil ServiceLaw.

THIRD REQUISITE: it must be promulgated in accordance with theprescribed procedure.

- among the prescribed procedure is the requirement of:




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a. PUBLICATION

· The clear objective of Article 2 of the NCC is to give the generalpublic adequate notice of the various laws, which are to regulatetheir actions and conduct as citizens. Without such notice andpublication, there would be no basis for the application of themaxim ignorantia legis non excusat. It would be the height ofinjustice to punish or otherwise burden a citizen for thetransgression of a law which he had no notice whatsoever, noteven a constructive one.

GR: Publication is required not only to laws passed by Congress, butincludes administrative regulations, which are issued in the exercise ofquasi-legislative power of the administrative agencies.

XPNs:

(1) interpretative regulation

(2) internal regulation

b. Furnish a copy of the administrative regulation to theUP LAW CENTER

- “Every agency shall file with the UP Law Center three (3)certified copies of every rule adopted by it”

- there is nothing in the Administrative Code of 1987 whichimplies that the filing of the rules with the UP Law Center is theoperative act that gives the rules force and effect.

FOURTH REQUISITE: it must be reasonable

- it must not be unreasonable, whimsical, oppressive,confiscatory

- must pass the test of reasonableness

- absence of one of these, the administrative regulation ought to

be invalidated.

LAW ON PUBLIC OFFICERS

What is a public office?

It refers to the right, authority or duty created and conferred by lawby which for a given period either fixed by law or enduring at the pleasure ofthe creating power, an individual is invested with some sovereign power ofthe sovereign function of the government, to be exercised by that individualfor the benefit of the public.

Elements: CD-DIP

1. It is created by law or authority of law

-the powers to create and abolish public office are vested in thelegislative

-power to abolish is not absolute, it must be done in good faith

2. Possess a delegation of a portion of the sovereign powers of thegovernment, to be exercised for the benefit of the public.

3. Powers conferred and duties imposed must be defined directly ofimpliedly by the legislature.

4. Duties must be performed independently and without the control of asuperior power other than the law.

5. Must have permanence or continuity.

Is salary an element in public office?

No. It is merely an incident of public office.

Congress can pass a law eliminating salaries. As a rule this cannotbe questioned. If Congress can remove the public office itself, then by allmeans. It may remove its incidence. However, everything must be done ongood faith.

Characteristics of a public office: PHOP

1. Public office is a public trust

It is merely entrusted to the public officer

Article XI (Accountability of Public Officer), Sec. 1 prov ides: “PublicOffice is a public trust. Public Officers and employees must at all means be

accountable to the people, serve them with utmost responsibility, integrity,loyalty and efficiency, and act with patriotism, justice and lead with modestlives.

2. It is not a heritable possession

Y? We live in a democratic and republican state.

Art. II, Sec. 26 provides: The State shall guarantee equal access toopportunities for public service and prohibit political dynasties as may bedefined by law (provision is not self-executing).




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3. It is outside the commerce of man.

It cannot be the subject of a valid contract.

If it is a subject, the contract is void.

4. It is not a property.

It is therefore not protected or guaranteed by the due process

clause.

Ex: A is holding public office, Congress decided to abolish it. A cannotcomplain that there was a violation of the due process clause if he was notgiven an opportunity to be heard, provided that the abolition is done in goodfaith.

ABOLITION VS REMOVAL

In abolition, what is abolished is the office itself, while in removal, itis the occupant that is removed, but the office remains.

Ex: A is holding a public office, he was removed. In this case, A may validly

invoke his security of tenure. He can only be removed for a just and validcause and there must be an observance of due process.

PUBLIC OFFICER

Who is a public officer?

A public office is one who holds a public of fice.

Any person, who by direct provision of law, popular election of byappointment of competent authority, shall take part in the performance ofpublic function on the Government of the Philippines or shall perform in saidGov’t or any of its branches public duties as employer, agent, subordinate,or official of any rank or class, shall be deemed to be a public officer.

May a notary public be considered as a public officer?

Yes

SELECTION

How is public officer chosen?

2 ways:

1. Election

2. Appointment

DESIGNATION -refers to the imposition of additional duties, usually by law,on any person already in public office. It presupposes that a person isalready appointed.

SEVILLA VS CA

Generoso Sevilla was appointed as Asst. City Engineer of PalayanCity, Nueva Ecija until he was designated as the Acting Eng’r of Cabanatuan

City. After the EDSA Revolution, Sevilla was ousted when the City Mayor ofCabanatuan appointed Nerito Santos as the new City Engineer. This waslater confirmed by the Ministry of Public Works and Highways and approvedby the CSC. This was questioned by Sevilla in an action/petition for Quowarranto filed against Santos.

SC: The petition is devoid of merit. An acting appointment is merelytemporary, one which is good only until another appointment is made to takeits place.

APPOINTMENT VS DESIGNATION

Appointment – selection by the proper authority of an individualwho is to exercise the functions of an office.

Designation – connotes merely the imposition of additional dutiesupon a person who is already in the public service by virtue of an earlierappointment or election. A mere designation does not confer upon thedesignee security of tenure in the position or office which he occupies only inan acting capacity.

Nature of designation

Essentially temporary and not entitled to security of tenure

APPOINTMENT in focus

Nature of appointment

1. Executive on character

2. DiscretionaryLUEGO VS CSC

Felimon Luego was appointed by Mayor Solon as AdministrativeOfficer II. His appointment was described as permanent, but CSC approvedit on a temporary basis subjecting it to the final action to be taken on theprotest filed by Felicula Tuazo. Subsequently, CSC found Tuazo to bebetter qualified than Luego and directed that Tuazo be instead appointed.Luego questioned this.




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SC: CSC has no authority to revoke said appointment simply because itbelieved that Tuazo was better qualified, for that would have constituted anencroachment on the discretion vested solely in the City Mayor.

Appointment is essentially a discretionary power and must be performed bythe power on which it is vested. The only condition being that the appointeeshould possess the qualification required by law. If he does, then theappointment cannot be faulted on the ground that there are others betterqualified who should have been preferred.

LUEGO DOCTRINE:

This is a political question involving consideration of wisdom whichonly the appointing authority may determine. For as long as the appointeehas the minimum requirements, the CSC and the SC are powerless torender that a better one is more qualified.

REMONTE VS CSC:

The head of an agency who is the appointing power is the one whois most knowledgeable to decide who can best perform the function of anoffice.

FLORES VS DRILONWhen the US-Phils treaty expired, Congress enacted RA 7227,

creating the SBMA. The Charter provided that for the first year of operation,the President shall appoint the Mayor of Olongapo City as head chairmanand CEO of SBMA. Thus, then Mayor Gordon assumed the positions.

SC: The Charter violates:

1. Art IX-B, Section 7, part 1:

“No elective official shall be eligible for appointment ordesignation in any capacity to any public office or position during his tenure.”This prohibits elective officers from being appointed or designated to anypublic office. The only exception is when the public office is to be held in ex-

officio capacity.2. Doctrine of Separation of Powers

Congress encroached on the power of the President toappoint. The President was not given an option at all. The Appointmentwas limited to the Mayor of Olongapo. The heart or core of appointment isthe power to choose. Also, the nature of appointment is discretionary, not aministerial act.

Hence, when the Congress clothes the President with the power to appointan officer, it cannot at the same time limit the choice of the President to only

one candidate. Once the power of appointment is conferred on thePresident, such conferment necessarily carries the discretion on whom toappoint.

NEXT IN RANK RULE

Where can you find the said rule?

Civil Service LawWhat is the next in rank rule?

If there is a vacancy in a government office that ought to be filled upby promotion, the person holding the position next thereto shall beconsidered for promotion.

Q: If the next to the Head Chief Accountant is the Deputy accountant and thethird is the Administering Officer IV, then the office of Chief Accountantbecame vacant and the then Deputy accountant and Administering Officer IVapplied, assume that another Chief Accountant applied and was appointed,can the Deputy Accountant claim that there was a violation of the next inrank rule?

A: No. The next in rank rule applies only in case of promotion. What isinvolved here is a mere transfer, a lateral movement involving same rankand position.

In case of a promotion, vertical movement from lower to a higher position.

Q: What if the one that was appointed was the Administering Officer, canDeputy Accountant complain?

A: Yes, because it was filled by a promotion.

Q: Can the Deputy Officer claim that he should be the one to be appointed?

A: No, appointment is discretionary.

Rules:

1. It applies only in cases of promotion.

2. Even in promotions, it can be disregarded for sound reasons madeknown to the next in rank as the concept does not import any mandatory orpreemptory requirement that the person next in rank must be appointed tothe vacancy.

3. The appointing authority is allowed to fill vacancies by promotion,transfer, reinstatement, etc.




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4. There is no legal fiat that a vacancy must be filled only by promotion, theappointing authority is given wide discretion to fill a vacancy from amongseveral alternatives provided by law.

5. One who is next in rank is entitled to preferential consideration forpromotion to higher vacancy BUT it does not necessarily follow that he andno one else can be appointed.

ABILA VS CSCWhen Amado Villafuerte retired from his position as Admin Officer

IV in DOH-Qeuzon City, the Officer-in-Charge appointed Alex Abila, who hadbeen the Acting Asst. Civil Security Officer, as his successor. This wasquestioned by Florentina Aleria, the Admin Officer III of DOH.

SC: A vacant position in the CSC may be filled by promotion, transfer ofpresent employees, reinstatement, re-employment or appointment ofoutsiders who have the necessary eligibility. The next in rank rule invokedby the CSC to justify its choice of Eleria over Abila APPLIES ONLY when avacancy is filled by promotion, a process which denotes a scalar ascent ofan officer to another position higher in rank or salary.

Even of the vacancy here had been filled by promotion rather by a lateraltransfer, the concept of next in rank rule does not import any mandatory orpreemptory requirement that the person next in rank must be appointed tothe vacancy. What the Civil Service Law provides is that if the vacancy isfilled up by promotion, the person holding the position next in rank theretoshall be considered for promotion.

The one who is next in rank is only entitled to preferential consideration.

The next in rank rule is not absolute. Even in promotion, it can bedisregarded.

PRINCIPLE OF VACANCY

Q: Jose, an employee working for ten years already, was surprised to learnthat Pedro replaced him. Jose was removed. But the CSC ordered the

reinstatement of Jose which became final. Can Pedro validly complain thatthere was a violation of security of tenure?

A: No. This is because there was no vacancy, hence security of tenure didnot attach.

2 PRINCIPLIES:

1. A person no matter how qualified cannot be appointed to an office whichis not vacant.

2. One who is illegally dismissed from office is, by fiction of law, deemed notto have vacated his office. His security of tenure did not attach.

QUALIFICATION TO PUBLIC OFFICE

The power to prescribe qualifications to public office is vested with theLEGISLATURE.

THREE IMPORTANT LIMITATIONS ON THE PART OF THE CONGRESS:1. If the qualifications are prescribed by the Constitution itself in anexclusive manner, then the Congress may not add nor subtract from theenumerated qualifications.

2. The qualification prescribed must be germane to the functions to beperformed.

3. The qualification must be expressed in general terms only.

TWO SENSES OF QUALIFICATION:

1. As an act

2. As an endowment

QUALIFICATION AS AN ACT

-consists in taking of an oath

-in case of an accountable officer (Ex: Treasurer), consist in the posting of abond.

Constitutional provisions related to it:

1. Art. 7, sec. 5 – before they enter on the execution of their office, thePresident, the Vice President or the Acting President shall take the followingoath or affirmation XXX.

2. Art IX-B, Sec. 4 – All public officers and employees shall take an oath oraffirmation to uphold and defend the Constitution.

3. Art. XV, Sec. 5, par. 1 – All members of the armed forces shall take anoath or affirmation to uphold and defend the Constitution.

Q: A public officer was appointed/elected. Then he assumed the office butfailed to take an oath. He nonetheless preformed his duties. Are his actsvalid?

A: Yes, insofar only as thi rd persons are concerned and the general publicrelied on the said acts. He is a de facto officer.




Prepared by: Atty Joan P. Gamboa

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DE JURE VS DE FACTO VS USURPER/INTRUDER

De Jure Officer – One who has lawful title

His acts are valid

His title may not be questioned

De Facto Officer – One who is in actual possession but only has a colorable

title. His title is imperfect.

His acts are valid insofar only as third persons are concerned and thegeneral public relied on the said acts.

His title may only be questioned directly in a quo warranto proceedings

Intruder/Usurper – No Title but in actual possession

His acts are entirely void

His acts may be questioned collaterally or directly.

Q: Is a De Facto Officer entitled to salary?

A: As a ru le, No. This is because he is not allowed to benefit from his acts.Otherwise it will encourage people to usurp other office. When he assumesoffice knowing that his title is imperfect, he runs the risk of not receiving asalary that attaches to the office.

EXCEPTIONS:

1. There is no de jure officer claiming for the salary OR

2. Assumption was made in good faith.

FLORES VS DRILON

SC: Gordon should not be made to reimburse for such emoluments.Otherwise the gov’t will be unjustly enriched by his services. Gordon was ade facto officer.

Prescriptive Period to attack a colorable title:

- 1 year from the disposition from office. After 1 year, the de factoofficer will ripen into a de jure one.

REQUIREMENTS OF A DE FACTO OFFICERSHIP

1. Existence of a de jure office (NO such thing as a de facto office, office iseither valid or void)

2. Color of title.

3. Actual physical possession of the office.

QUALIFICATION AS AN ENDOWMENT

- possession of attributes to be qualified

- refers to Citizenship, Age, Civil service eligibility, Education, Residence(CACER)

- qualifications are continuing

a. citizenship

- this is the most important

- only Filipinos may hold public office

b. residence

- only in elective office – as an elective official, he/she must serve in aparticulare constituent

In Civil Law, residence and domicile are different. In the said law, a personmay only have several residences but may only have one domicile. InPloitical Law, particularly in election law, residence and domicile are the

same.

3 CLASSES OF DOMICILE

1. Domicile of Birth

2. Domicile of Choice

3. Domicile by Operation of Law

MACALINTAL VS COMELEC

At any given point, a person may only have one domici le

Domicile of Origin

- this is acquired by any person at birth

- it is the domicile of the child’s parents and not necessarily the placeof birth.

Domicile of Choice

- take place if one leaves his original domicile, he was able toestablish his physical presence in another locality.





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Domicile by Operation of Law

- domicile law attributes to a person; independent to his intention orresidence

EX: woman (resident of Cabanatuan City) marries husband(resident of Pasig City), woman will adopt the residence ofhusband.

IMELDA ROMUALDEZ-MARCOS VS COMELEC

Imelda run as a congresswoman in Leyte. For the resident requirement, sheshould be a resident thereof for a period of not less than 1 year immediatelypreceding the election. Her qualification was questioned on the ground thatunder the Civil Code, when the woman gets married, she gets the residenceof the husband by operation of law. Pres. Marcos was a resident of SanJuan. At that time, Family Code does not exist yet.

SC: With the death of her husband, her adoption of the San Juan residencyis lost.

CAASI VS COURT OF APPEALS

Miguel Merito ran for mayor in Bolinao, Pangasian. Adisqualification case was filed against him by Mateo Caasi, a rival candidatefor the position on account of his being a green cardholder. His defense wasthat (1) he was voted by the people, hence the defect was cured. Also, healleged that (2) he never really intended to live there permanently, for all hewanted was a green card to enable him to come and go to the U.S. withease because he had to undergo a regular check-up.

SC: Argument No.1) he was voted by the people, hence the defect wascured:

Merito was disqualified. People of Bolinao cannot amend theOmnibus Election Code (OEC). His election thereto was null and void. Thelaw applicable to him is Sec. 68 of the OEC –“Any person who is apermanent resident of or an immigrant to a foreign country shall not be

qualified to run for any elective office under this Code, UNLESS such personhas waived his status as permanent resident or immigrant of a foreigncountry in accordance with the residence requirement provided for in theelection laws.

To be qualified to run for any elective office in the Philippines, thelaw requires that the candidate who is a green cardholder must have waivedhis status as a permanent resident or immigrant of a foreign country.Therefore his act of filing a certificate of candidacy for elective office in thePhilippines did not of itself constitute as a waiver of his status as apermanent resident of U.S. The waiver of his green card should be

manifested by some act or acts independent of and done prior to filing hiscandidacy for elective office in this country. Without such waiver, he wasdisqualified to run for any elective office.

The fact was that he is a green cardholder and has acquired theright to reside in other country. The renunciation of the green card requiresa separate act; the filing of the certificate of candidacy is not renunciation.What is involved in this case is not citizenship but rather permanentresidency in another country.

SC on Argument No (2) -- He never really intended to live therepermanently, for all he wanted was a green card to enable him to come andgo to the U.S. with ease because he had to undergo a regular check-up:

Even if he never really intended to live there permanently, this courtwill not allow itself to be a party to his duplicity by allowing him to benefitfrom it and giving him the best of both worlds to speak.

OTHER QUALIFICATIONS AS AN ENDOWMENT

c). age

--must be possessed on the day of the election

d). education

--a qualification under Civil Service Law

--true only to appointive officials, in case of elective official, minimumrequirements are that he must be able to read and write

e). civil service eligibility

Religious Affiliations

--cannot be a valid disqualification to hold public office

--No religious test shall be required for the exercise of civil or political rights

Political Affiliation

G.R. Not a valid qualification

Xpn: Can be a valid qualification under:

1. Party-list system

2. Membership in the Commission on Appointments

3. In case of permanent vacancies in the Sanggunian





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DISQUALIFICATIONS:

Sec. 40, LGC. Disqualifications. – The following persons are disqualifiedfrom running for any elective local position:

1. Those sentenced by final judgment for an offense involving moralturpitude or for an offense punishable by one year or more of imprisonmentwithin two years after serving the offense;

2. Those removed from office as a result of an administrative offense;

3. Those convicted by final judgment for violating an oath of allegiance tothe Republic;

4. Those with dual citizenship;

5. Fugitives from justice in criminal or non-political cases here or abroad;

6. Permanent residents in a foreign country or those who have acquired theright to reside abroad and continue to avail of the same right after theeffectivity of this Code; and

7. The insane or feeble-minded.

1. Within two years after serving the offense:-partial disqualification

Q: What offenses?

A: Those sentenced by final judgment

1. Moral turpitude

2. Punishable by one year or more of imprisonment

DELA TORRE VS COMELEC

Violation of Anti-Fencing Law constitute an offense involving moralturpitude.

2. Those removed from office as a result of an administrative offense:LINGATING VS COMELEC

The administrative case must have attained finality for thedisqualification to apply. If still pending appeal or on certiorari,disqualification is not applicable.

If the penalty is removal – disqualification shall apply

If the penalty is suspension – disqualification not applicable by expressprovision of Sec. 66, LGC, as long as he meets the qualifications required.

4. Those with dual citizenship:

- this refers to dual allegiance (Mercado vs Manzano)

5. Fugitives from justice in criminal or non-political cases here or abroad:

MARQUEZ JR VS COMELEC

In May 1995 election, Rodriguez ran for Governor (Quezon

Province). He won. Marquez, a defeated candidate, filed a disqualifica tioncase against Rodriguez under sec. 40(e) after finding out that Rodriguez hadcriminal charges against him of insurance fraud or grand theft of personalproperty.

Contention of Rodriguez – Not fugitive from justice because he is not yetconvicted by final judgment.

SC: No. Fugitive from justice applies not only to those convicted by final judgment and who absconds to evade punishment BUT also to one, where avalid criminal information is already filed and he absconded to evade jurisdiction.

RODRIGUEZ VS COMELEC

Although there was indeed fraud insurance case before theCalifornia court, HE IS NOT A FUGITIVE FROM JUSTICE because thecases were filed 5 months after he has returned to the Philippines, thecontrolling factor was the intent to evade jurisdiction. He could not have theintent to evade because there is no information yet.

LIMITATION ON THE TERM OF THE ELECTIVE OFFICIALS

Art. V, Section 8 – The term of office of elective local officials, exceptbarangay officials, which shall be determined by law, shall be three yearsand no official shall serve for more than three consecutive terms. Voluntaryrenunciation of the office for any length of time shall not be considered as aninterruption in the continuity of his service for the full term for which he waselected.

Term: 3 years except barangay officials

Can serve for three consecutive terms

BORJA VS COMELEC

Borja was first elected as Vice Mayor in 1988 at Pateros. In 1989,the Mayor died, so he replaced the Mayor. During the 1992 elections, heran and won. In 1995, he again ran and won. In 1998, he ran again. Hisqualification was questioned.





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SC: Borja is qualified. The term limit for elective local officials must betaken to refer to the right to be elected as well as the right to serve in thesame elective position. Consequently , it is not enough that an individual hasserved three consecutive terms in an elective local office, he must also havebeen elected to the same position for the same number of times before thedisqualification can apply.

TWO POLICIES EMBODIED HERE:

1. To prevent the establishment of political dynasties

2. To enhance the freedom of choice of the people

TWO CONDITIONS FOR THE LIMITATION TO APPLY (both mustconcur):

1. The local official must be elected for three consecutive terms for thesame position.

2. He has fully served the 3 consecutive terms.

If resigned: voluntary renunciation, not considered as an interruption fromoffice, limitation will apply

If suspended: interruption from office – involuntary renunciationQ: Mayor was elected in 1988. He ran and won again on 1992 and 1995election. But there was an election protest regarding the 1995 election. OnMarch 1998, he was removed because of a COMELEC decision. Is hequalified to run in the 1998 election?

A: YES. He was only elected twice since he eventually lost in the electionprotest. In 1995, he is merely a presumptive winner. There is a failure ofthe two conditions (LONZANIDA VS COMELEC).

Q: X was elected Mayor in 1992 election. In 1995 and 1998 elections, heran and won again. In December 2000, as a result of an administrative

case, he was removed. He did not appeal. The administrative casebecomes final. Is he qualified to run in the 2001 election?

A: NO! He is disqualified to run because of Sec. 40 of the LGC and notbecause of Art. X, Sec. 8.

LINGATING VS COMELEC – The administrative case must have attainedfinality before the disqualification to apply. If still pending appeal orcertiorari, disqualification is not applicable.

Q: X was elected in 1992. In 1995 and 1998, he ran and won again. In2000, as a result of an administrative case, he was removed but he has able

to appeal seasonably. In May 2001, he filed his certificate of candidacy.The administrative case was not yet decided. Is he qualified?

A: Yes he is qua lified to run.

Q: What happens to his pending appeal?

A: It becomes moot and academic because of the Doctrine o f Condonat ion.The rationale for this is that when the electorate puts him back to theposition, it is presumed that they did so with knowledge of his life, characterand past mistakes.

SOCRATES VS COMELEC (Nov. 10, 2002, En Banc)

Hagedorn was elected as Mayor in 1992, 1995 and 1998 elections.In the next election, he ran as governor. However, he lost. Meanwhile, theone elected as Mayor of Puerto Princesa was Socrates. Socrates’ termstarted June 30, 2001. After a year, a resolution calling for a special electionwas passed. On the said special election, Hagedorn filed his certificate ofcandidacy. His qualification was questioned.

SC: He is qualified. The three term limit is found in Art. X, Sec. 8 andreiterated in Sec. 43, par. B of LGC. WHAT IS PROHIBITED IS

IMMEDIATE RE-ELECTION to the SAME OFFICE for a FOURTHCONSECUTIVE TERM. In this case there is an intervening date.

Q: What if in 2004 and 2007 he wins again, then in 2010, he wants to runagain, is he qualified to run?

A: SC in the same case said that: The service of a recall term shallconstitute one full term. Reason: Elected official in a recall election shouldknow that the service of recall term shall constitute one full term. (OBITERDICTUM)

MENDOZA VS COMELEC

In 1992, Tet Garcia won as governor. In 1993, Recall election wasmade, Ting Roman won as governor. In 1995 and 1998 elections, Roman

won again. In 2001, Roman ran again. Is he qualified to run?SC: He is qualified. Recall term is not a full term. Looking at theConstitutinal records and the Constitution, it can be seen that they bothenvision continuance and uninterrupted service of term. The service ofrecall term should not be counted in applying the disqualification.

Q: With this ruling, has the ruling in Socrates been abandoned?

A: No. What has been abandoned in Socrates was a mere Obiter Dictum.No actual controversy yet.





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Service of recall term will not constitute one full term in applying thedisqualification.

CIVIL SERVICE COMMISSION

One of the Constitutional Commissions

It is the central personnel agency of the government tasked toadminister all the civil service.

COMPOSITION AND QUALIFICATION

Art. IX-B, Sec. 1(1) – The civil service shall be administered by the CivilService Commission composed of a Chairman and 2 Commissioners whoshall be a natural born citizens of the Philippines, and at the time of theirappointment, at least 35 years of age, with proven capacity for publicadministration, and must not have been a candidates for any electiveposition in the elections immediately preceding their appointment.

SCOPE

Art. IX-B, sec. 2(1) – The Civil Service embraces all branches, subdivisions,

instrumentalities and agencies of the government, including the GOCC withoriginal charters.

TEST: WITH OR WITHOUT ORIGIANL CHARTERS

(1) If a GOCC was created by special law, it is with original charter

- The special law creating it is the charter

- It is governed by the Civil Service law

- In case of illegal termination, it is under the jurisdiction of theregular courts

Ex: DBP, Land Bank, PCSO, PAGCOR, GSIS

(2) If a GOCC was incorporated pursuant to the General Corporation, it iswithout original charter

-It is nor governed by Civil Service Law

-In case of illegal termination, jurisdiction is with the Labor Arbiter orNLRC, hence governed by Labor Code.

BOY SCOUTS OF THE PHILIPPINES VS NLRC

The BSP is an instrumentality attached to DECS and no less thanthe President himself is the Chief Scout. No less than 7 members of theCabinet are members of the BSP. In short, there is so much governmentexposure. They are governed Civil Service Laws and not the Labor Code.

CAMPOREDONDO VS NLRC

Baltazar Camparedondo was a chapter administrator of PNRC.During a field audit, he was found short. His request for a re-audit by anindependent auditor of his account was denied. Thereafter, he filed withNLRC a complaint for illegal dismissal. PNRC moved to dismiss thecomplaint on the ground of lack of jurisdiction over the subject matter,alleging that it is embraced within the Civil Service rules and regulations,being a GOCC with an original charter. Camporedendo questioned thiscontending that its charter was already amended corverting it to a publiccorporation.

SC: Philippine National Red Cross is a GOCC with an original charter underR.A> 95, as amended. The test to determine whether a corporation isgovernment owned or controlled or private in nature is simple. Is it created

by its own charter for the exercise of a public function or by incorporationunder the general incorporation law? Those with special charters aregovernment corporations subject to its own provisions and its employees areunder the jurisdiction of CSC and are compulsory members of the GSIS.The PNRC was not impliedly converted to a private corporation simplybecause its charter was amended.

KINDS OF APPOINTMENTS

1. Permanent – extended to one who possesses all the qualificationsincluding civil service eligibility.

2. Temporary - extended to one who possesses all the qualifications butwithout the civil service eligibility.

The law requires publication of all vacant positions in the government. Thisis mandatory so that all eligible can apply.

Positions that need not be published include PRIMARILY CONFIDENTIALPOSITIONS, which are co-terminus with the appointing authority.

Duration of Temporary Appointment

- one year

- but it may even be shorter





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Q: X was given an extended temporary appointment to a given office. In themeantime, A took the Civil Service examination and passed. Is theappointment status of X automatically converted to permanent?

A: NO! There is a need for a new appointment.

Regular employee – used in Labor Code only, not in Civil Service

CLASSIFICATION OF __(DI Ko TALAGA MABASA, MALABO COPYKO)___IN CIVIL SERVICE

1. Career Service

2. Non-career Service

BAR Question:

What are the characteristics pf career positions as well as non-careerpositions?

1. Career –

a. Entrance is based on merit and fitness to be determined basedon competitive examination or it is based on highly technical qualifications;

b. There is security of tenure;

c. Opportunity for advancement to a higher position.

2. Non-Career –

a. Entrance is based other than those tests of merit and fitnessutilized for the career service;

b. Tenure is:

1. Limited to a period specified by law;

2. Coterminous with that of the appointing authority orsubject to his pleasure; or

3. Limited to the duration of a particular project for whichthe purpose for employment was made.

Q: How do you classify position of members of the SangguniangPanlalawigan?

A: Non-career. It is an elective office.

All elective officials occupy non-career positions since no examination isrequired to be taken and the tenure is limited to a period specified by law.

HIGHLY TECHNICAL POSITIONS

- One which requires the possession of skill or training in thesupreme or superior degree

Ex: Scientist in the government service

Professors in the state universities

Q: How do you classify highly technical positions?

A: Career

Q: Are engineers in the government occupy highly technical positions?

A: NO! They may possess technical sk ills or training but not in the supremeor superior degree, hence non-career.

PRIMARILY CONFIDENTIAL POSITIONS

Q: What are their classifications? A: Non-Career. There tenure is co-terminous with that of the appointingauthority or subject to his pleasure.

DEFINITION OF PRIMARILY CONFIDENTIAL POSITIONS

It is one which denotes not only confidence in the aptitude of theappointee for the duties of the office bur primarily close intimacy whichinsures freedom from the intercourse without embarrassment frommisgivings or betrayals of personal trust or confidential matters of state.

GRINO VS CSC

The position of a provincial attorney is both highly technical andprimarily confidential position. But its predominant feature is primarilyconfidential. Hence, he can be removed based on loss of trust orconfidence. However his staff is highly technical. He holds the position co-terminous with the pleasure of the appointing authority. There is no removalbut only expiration of term.

When pleasure becomes displeasure, the term becomes fixed andautomatically expires. One who is holding a primarily confidential position,who was removed from in the ground of loss of trust and confidence cannotcomplain on the ground that there was a violation of his security of tenure.





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PROXIMITY RULE

- This is the test to determine whether or not the position is primarilyconfidential or not. The distance between the positions of the appointingauthority and the employee is considered.

CSC VS SALAS

Salas was an employee of PAGCOR, a GOCC with an originalcharter. He was a supervisor of the dealers in the casino. He wassuspected in engaging in proxy betting. There was a discreet investigationconducted of his act. He was later removed on the ground of loss of trustand confidence. His defense was that he cannot be removed from office onthe ground that under the Constitution, no employee of the Civil Service shallbe removed except for causes provided by law. On the other hand,PAGCOR contends that under its charter, all positions are primarilyconfidential and hence may be removed in the ground of loss of confidence.CSC affirmed his dismissal. On appeal, CA reversed and applied theproximity rule.

SC: Applying the proximity rule, Salas cannot be removed on the saidground. The position of Salas as a supervisor is too remote from the

appointing authority, the Chairman. There are so many intermediariesbetween them.

The occupant of a particular position could be considered a confidentialemployee if the predominant reason why he was chosen by the appointingauthority was the latter’s belief that he can share a close intimacy with theoccupant which ensures freedom of discussion without fear ofembarrassment or misgivings of possible betrayal of personal trust orconfidential matters of the State.

Art. IX-B sec. 2 par. 2 – Appointment in the Civil Service shall be made on lyaccording to merit and fitness to be determined as far as practicable andexcept to positions which are policy-determining, primarily confidential orhighly technical, by competitive examination. (It has nothing to do with theclassification of his position as career on non-career).

ADMINISTRATIVE DISCIPILINARY CASES

Q: Who has jurisdiction over administrative disciplinary cases?

A: Under the Civil Service Law:

ORIGINAL: CSC or head of office, agency or bureau

APPEAL: CA under its expanded jurisdiction

Secretary/head of bureau-#CSC-#CA

CSC#CA

Q: Can you bring an administrative case directly with the CSC?

A: Yes. CSC has original and appellate jurisdiction. Under the Civi l Servicelaw, a complaint against a government official or employee may be fileddirectly to the CSC (not only to the heads of office).

Q: Under LGC, where do you file?

A: Local Chief Executive

OMBUDSMAN ACT OF 1989 (RA 6770)

- the charter of the Ombudsman

- under this law, the Ombudsman has disciplinary authority overallpublic officers whether appointive or elective, national or local,except:

(1) Impeachable officers – Pres, VP, Members of SC, ConCon,Ombudsman (Justices of the Sandiganbayan – not included).

(2) Members of Congress

(3) Members of the Judiciary

Appeal from the decision of Ombudsman in an adminis trative case

Under the Ombudsman Act - Directly to the Supreme Court(Remember, the Constitution provides that no law shall be passedincreasing the appellate jurisdiction of the SC without its advice andconcurrence.)

FABIAN VS DESIERTO

Direct appeal to the SC has been declared unconstitutional. Itsenactment was in violation of Art. VI Sec. 30 of the Constitution which

provides that no law shall be passed increasing the appellate jurisdiction ofthe SC without its advice and concurrence. The provision in theOmbudsman Act has the effect of increasing the appellate jurisdiction of theSC without its advice and concurrence.

Now, the rule is: Ombudsman#CA

GOVERNOR LITO LAPID VS CA

An adminis trative case was f iled against Lapid by the Ombudsman. After investigation, it was found that he was guilty. The penalty wassuspension from office for one year without pay. He was able to appeal





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seasonably. Ombudsman Desierto wanted to execute the decision pendingappeal.

SC: Under the Ombudsman Act, only the following cases are final andexecutory:

1. Provisional orders of the Ombudsman;

2. Decision where the penalty is:

a. suspension for not more than 30 days;b. fine not more than 30 days salary;c. censure;d. reprimand;e. admonition

EXCLUSIO UNIUS EST INCLUSIO ALTERIUS – The suspension againstLapid is clearly not among those enumerated as immediately executory.The clear import of these provisions, taken together, is that all otherdecisions of the Office of the Ombudsman which impose penalty outsidethan those which are enumerated are not final and unappealable, hence notimmediately executory. An appeal timely filed will suspend or stayimmediate execution of the decision.

APPEALS IN ADMINISTRATIVE DISCIPLINARY CASES

Q: Is appeal available in administrative disciplinary cases?

A: Depends on the penalty imposed –

1. If the penalty is:

a. demotion;b. dismissal;c. suspension for more than 30 days or a fine equivalent to

more than 30 day salary;Appeal is available.

2. If the penalty is:

a. suspension for not more than 30 days;b. fine not more than 30 days salary;c. censure;d. reprimand;e. admonition

Appeal will not lie; the decision is final and executory by expressprovision of the law.

Appeal is not a constitutional right but merely a statutory right.

Why? Not part of the Constitution

Q: X was charged administratively, she was later on exonerated. May thecomplainant appeal?

A: No. However, with respect to the meaning of party adversely affected,the ruling under Paredes has already been abandoned. Hence the answernow is YES.

PAREDES VS CSC

Appeal is not a constitutiona l right but merely a statutory right. Areading of the Civil Service Law will tend to show that appeal is availableonly to the party adversely affected by the decision. A further reading of thelaw, the party adversely affected by the decision is the respondent who wasfound guilty. In fact, even if he was found guilty but the penalty wassuspension or fine for not more than 30 days, appeal cannot be madebecause the decision in such a case becomes final and executory. Withmore reason that if he is exonerated, no more appeal. In an administrativecase, the real offended party is the government; the complainant is a merecomplaining witness so that he has no personality to pursue the appeal.Hence, party adversely affected was limited to the defendant.

CSC VS DACOYCOY

Dacoycoy was the head of a government vocational school inSamar. Two of his sons were extended permanent appointment under hisadministrative supervision although he was not the one who neitherappointed nor recommended them. A case was filed against him forviolation of the law on nepotism. CSC found him guilty. The penalty wasdismissal. As the party adversely affected, he appealed to CA. CAexonerated him. If we will follow the Paredes ruling, there is no more appealand the complainant cannot appeal because is merely a complainingwitness.

SC: CSC can appeal because it was their decision that was reversed by theCA. To this extent only, CSC became the party adversely affected. By thisruling, the Paredes Doctrine, up to this extent, is abandoned. The phrase‘party adversely affected’ refers to the government employee against whomthe administrative case is filed for the purpose of a disciplinary action whichmay take the form of suspension, demotion in rank or salary, etc. and notincluded are the cases where the penalty imposed is suspension for notmore than 30 days or fine in an amount not exceeding 30 days salary.(PAREDES VS CSC)

PREVENTIVE SUSPENSION (pending investigation)

Nature: Not a penalty. It is imposed while the case is being investigated orpending appeal. It should be distinguished from dismissal or suspension





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which may only be imposed upon investigation and subsequent finding ofguilt.

BEJA, SR VS CA

Preventive suspension is not a penalty by itself; it is imposed onlyduring the pendency of an administrative investigation. It is merely ameasure of precaution so that the employee who is charged may be

separated for obvious reasons, from the scene of his alleged misfeasance,ehilr the same is being investigated. Thus, preventive suspension is distinctfrom the administrative penalty of removal from office such as the onementioned in Sec 8 (d) of PD 807. While preventive suspension may beimposed on a respondent during the investigation of the charges againsthim, the removal from office is a penalty which may only be meted out uponhim at the termination of the investigation or the final disposition of the case.

GLORIA VS CA

Preventive suspension pending investigation is not a penalty. It issimply a means of preventing the latter from interfering or intimidating thewitnesses against him.

YABOT VS OMBUDSMAN VASQUEZ

An administrative case was filed against Vice-Mayor Yabot by an American doctor. He was placed under preventive suspension for 60 days.Yabot contends that he was already suspended and hence, can no longerbe suspended again.

SC: The first suspension that was imposed was not the penalty. It is merelya preventive suspension. The second suspension was the penalty. The twosuspensions are of different nature. The service of preventive suspensioncannot be credited with the service of suspension as penalty.

LAYNO VS SANDIGANBAYAN

If the preventive suspension, however, becomes indefinite,so much that the term of the elective official is about to expire and his

suspension is not yet lifted, in effect he was being penalized and consideringthat after the investigation is not yet terminated, to that extent, there was adenial of due process, hence must be nullified. Also, the right to dueprocess of the people who voted for him is likewise violated.

A preventive suspension that lasted for 5 years becomes anindefinite suspension and therefore violative of due process.

A preventive suspension is not an action by itself but merely anincident to an action.

To know what law is applicable in case of a preventive suspension,determine first if administrative or criminal case.

A. ADMINISTRATIVE CASE

1. Civil Service Law

Period - 90 days

Case – Gloria vs CA2. Local Government Code

Period – 60 days for appointive officials

% 60 or 90 days fro elective officials

3. Ombudsman Act

Period – 6 months

Case – Hagad vs Gonzales

B. CRIMINAL CASE

1. Anti-Graft and Corrupt Practices Act

Period – 90 days applying by analogy

PREVENTIVE SUSPENSION IN AN ADMINISTRATIVE CASE

I. CIVIL SERVICE LAW

If one is charged administratively, while pending investigation, hecan be preventively suspended for a period of 90 days.

If after the lapse of the 90 day period and the investigation has notbeen terminated, there will be an automatic reinstatement.

However if one contributed to the delay of the proceedings or hasfiled a petition for certiorari, the period of the delay or certiorari will notbe included in the computation of the 90 day period of preventive

suspension.

Q: Who shall impose the preventive suspension?

A: The CHIEF of the office, agency or bureau shall be the disciplinaryauthority.

GLORIA VS CA

During the teachers’ strike, the public school teachers in this casedid not report for work. Accordingly, they were administratively chargedand placed under preventive suspension. The investigation concluded





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before their 90 day suspension and they were found guilty. On appeal,Merit Systems and Protection Board, later affirmed by the CSC,dismissed their claim. Before the CA, they asked that they be paid fortheir salaries during their suspension beyond 90 days. This wasgranted. Hence, Sec. Gloria questioned this.

SC: The public school teachers are entitled to their salaries computedfrom the time of their dismissal or suspension until their actual

reinstatement, for a period of not exceeding 5 years.

There are two kinds of preventive suspension of civil serviceemployees who are charged with offenses punishable by removal orsuspension:

1. Preventive Suspension pending investigation

2. Preventive suspension pending appeal, if the penalty imposed issuspension or dismissal and after review the respondent is exoneratedon appeal.

Preventive suspension pending investigation is not a penalty. It is ameasure intended to enable the disciplining authority to investigatecharges against the respondent by preventing the latter from

intimidating or in any way influencing witnesses against him. If theinvestigation is not finished and the decision is not rendered within theperiod, the suspension will be lifted and the respondent willautomatically be reinstated. If after the investigation, the respondent isfound innocent of the charges and is exonerated, he should bereinstated. However, no compensation was due for the preventivesuspension pending investigation.

In case of a suspension pending appeal, he is entitled tocompensation for the period of their suspension pending appeal ifeventually he is found innocent. Why? It is actually punitive incharacter although it is in effect subsequently considered illegal ifrespondent is exonerated and the administrative decision finding himguilty is reversed. Hence, he should be reinstated with full pay for the

period of the suspension.

SIGNIFICANCE OF THE DIFFERENCE:

Pending Investigation – not entitled. Why? Not a penalty but is entitled treinstatement.

Pending Appeal – if on appeal he is exonerated, he is entitled to fullbackwages and reinstatement; it is punitive in character.

II. LOCAL GOVERNMENT CODE

1.) Sec. 85 LGC – “Preventive Suspension of Appointive Local Officialsand Employees. a.) The local chief executives may preventively suspend for a

period not exceeding sixty (60) days, any subordinate official oremployee under his authority pending investigation, if thecharge against such official or employee involves dishonesty,

oppression or grave misconduct or neglect in the performanceof duty, or if there is reason to believe that the respondent isguilty of the charges which would warrant his removal from theservice.

b.) Upon the expiration of the preventive suspension, thesuspended official or employee shall be automaticallyreinstated in office without prejudice to the continuation of theadministrative proceedings against him until its termination, ifthe delay in the proceedings of the case is due to the fault,neglect or request of the respondent, the time of the delay shallnot be counted in computing the period of suspension hereinprovided.

Q: Maximum period of preventive suspension? A: 60 days

Q: Who shall impose? A: the local ch ief executives

2.) Sec. 63 LGC- “Preventive Suspension. –a.) Preventive suspension may be imposed:(1) By the President, if the respondent is an elective official of a

province, a highly urbanized or an independent componentcity;

(2) By the governor, if the respondent is an elective official of acomponent city or municipality; or

(3) By the mayor, if the respondent is an elective official of hebarangay

b.) Preventive suspension may be imposed at any time after theissues are joined, when the evidence of guilt is strong, andgiven the gravity of the offense, there is great probability thatthe continuance in office of the respondent could influence thewitnesses or pose a threat to the safety and integrity of therecords and other evidence: Provided, that any singlepreventive suspension of local elective officials shall not extendbeyond sixty (60)days; Provided further that in the event that





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several administrative cases are filed against an electiveofficial, he cannot be preventively suspended for more thanninety (90) days within a single year on the same ground orgrounds existing and known at the time of first suspension.

c.) Upon expiration of the preventive suspension, the suspendedelective official shall be deemed reinstated in office withoutprejudice to the continuation of the proceedings against him,

which shall be terminated within one hundred twenty (120)days from the time he was formally notified of the case againsthim. However, if the delay in the proceedings of the case isdue to his fault, neglect or request, other than the appeal dulyfiled, the duration of such delay shall not be counted incomputing the time of termination of the case.

d.) Any abuse of the exercise of the power of preventivesuspension shall be penalized as abuse of authority.

Q: Period? A: 60 days for every adminis trative charge

90 days if there are several administrative charges, during a givenyear

Q: who shall impose? A: if respondent is-

a.) Barangay official – mayorb.) Official of component city or municipality – Governorc.) Official of independent component or highly urbanized city or

province- President

JURISDICTION

Appointive OfficialsQ: Where do you file an administrative complaint against local

appointive officials? A: From Local chief executive # Civil Service Commission # Court

of Appeals

Elective OfficialsQ: where do you file an administrative complaint against local

elective offificals? A: (1) Barangay of ficial in a

a. Municipality - sangguniang bayanb. City – sangguniang panglungsod

(2) Official of a municipality – sangguniang panlalawigan(3) City official and provincial official – Office of the President

*Sec. 63 relate to Sec. 62 (c) LGC – “xxx no investigation shall be heldwithin ninety (90) days immediately prior to any local election, and nopreventive suspension shall be imposed within the said period. If thepreventive suspension has been imposed prior to the 90-day periodimmediately preceding local election, it shall be deemed automatically liftedupon the start of aforesaid period.”

GANZON vs. CAOmbudsman Act (RA 6770) – administrative jurisdiction

! The ombudsman or his deputy has the power to preventivelysuspend

! For a period of 6 months

HAGAD vs. JUDGE GOZO-DADOLE An administrative case was filed against a Mayor in one of the

towns in Visayas. He was placed under preventive suspension for 6 months.He argued that being a local elective official his preventive suspensioncannot exceed 60 days as provided in the LGC and the LGC being laterenactment, is deemed to have repealed the Ombudsman Act with respect tothe imposition of the preventive suspension.

SC: There is nothing in the LGC (RA 7160) to indicate that it hasrepealed the pertinent provisions of the Ombudsman Act (RA 6770).Repeals by implication are not favored. Every statute must be so interpretedand brought into account with other laws as to form a uniform system of jurisprudence. Besides, the grounds to impose preventive suspension underthe LGC and the Ombudsman Act are different. The Ombudsman hasconcurrent jurisdiction with the officers who have authority to imposepreventive suspension pursuant to Section 63 of LGC.

PREVENTIVE SUSPENSION IN CRIMINAL CASE

Anti-Graft and Corrupt Practices Act (RA 3019)

Section 13 RA 3019 – Suspension and Loss of Benefits – “Anyincumbent public officer against whom any criminal prosecution under avalid information under this Act or under Title 7, Book II of the RPC or forany offense involving fraud upon government or public funds or propertywhether as simple or as complex offenses and in whatever stage ofexecution and mode of participation, is pending in court shall be suspendedfrom office. Should he b e convicted by final judgment, he shall lose allretirement or gratuity benefits under any law, but if he is acquitted, he shallbe entitled to reinstatement and to the salaries and benefits which he failedto receive during the suspension, unless in the meantime administrativeproceedings have been filed against him.”





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Q: Who has the authority to impose preventive suspension? A: the law is silent. However in LUCIANO vs. PROVINCIAL GOVERNOR,the Court interpreting Sec.13 held that “It is the court where the criminalcase was filed that has the authority to impose preventive suspensionpursuant to Sec. 13.” It is not the fiscal or prosecutor nor the Ombudsman. Acourt that has acquired jurisdiction will have to exercise jurisdiction also over

the incidence of the case.

Q: Before what court should the case be filed? A: Depends –

a. Salary grade 27 and over – Sandiganbayan b. Below salary grade 27 – RTC or MTC

“shall be suspended from office”• Preventive Suspension is mandatory. The Court has no

discretion whether to place the officer under preventivesuspension or not.

• While preventive suspension is mandatory, it is NOTautomatic. The court must conduct a PRE-SUSPENSIONHEARING, the purpose of which is for the court to determine

the validity of the criminal information filed against the accusedpublic officer. It is only when the court is satisfied that thecriminal information was validly filed that the court will imposepreventive suspension. Only then that the preventivesuspension becomes mandatory. (SOCRATES vs.SANDIGANBAYAN)

Q: What is the duration of the preventive suspension? A: The law is silent. However in GONZAGA vs. SANDIGANBAYAN, thecourt held that the Civil Service Law should be applied by analogy sinceSec. 13, RA 3019 is silent as to the duration of the preventive suspension.Hence, the duration is ninety (90) days. There are no more cases now ofindefinite suspension.

BAYOT vs. SANDIGANBAYAN; SEGOVIA vs. SANDIGANBAYAN;DELLOSA vs. SANDIGANBAYAN

X was a municipal mayor. He was criminally charged before theOmbudsman. While the Ombudsman was investigating the criminalcomplaint, there was an election. X ran for governor and won. In themeantime, the Ombudsman filed the criminal case against him with theSandiganbayan. The Sandiganbayan issued the preventive suspensionagainst X. X now contends that he can no longer be preventively suspendedfor the acts he did when he is still a mayor.

SC: the contention is not correct. The amendatory provisions clearlystates that any incumbent public officer against whom any criminalprosecution under a valid information under RA 3019 or for any offenseinvolving fraud upon the government or public funds or property whether asa simple or as a complex offense and in whatever stage or execution andmode of participation, is pending in court shall be suspended from office.Thus by the use of the word “office” the same applies to any office which the

officer charged may be holding and not only the particular office which hewas charged.

*Section 13 RA 3019 does not state that the officer concerned must besuspended only for the office he was charged.

*Moreover, should the purposes behind preventive suspension becomemanifest, the respondent court is not bereft of remedies or sanctions. Thepetitioner may still be suspended but for specifically expressed reasons andnot from an automatic application of Section 13, RA 3019.

SANTIAGO vs. SANDIGANBAYAN/ PAREDES vs. SANDIGANBAYANWhen X was a governor, a criminal complaint against him for

violation of anti-graft was filed. While the Ombudsman was investigating,

there was an election. X ran for Congressman and won. In the meantime,the Ombudsman filed the criminal information against X before theSandiganbayan. The Sandiganbayan issued a suspension order addressedto the Speaker of the House of Representatives for him to carryout the order.The Speaker refused to execute because it violated Section 16 par 3 ArticleVI of the Constitution (Each House may determine the rules of itsproceedings, punish its own members for disorderly behavior and either theconcurrence of 2/3 of all its members, suspend or expel a member. Apenalty of suspension, when imposed shall not exceed 60 days)

SC: there is no encroachment here. What is being imposed by theSandiganbayan is not a penalty but merely a preventive suspension.Members of Congress are not exempted from the operation of Section 10,

RA 3019. The law says “any incumbent public officer”. We are onlyinterpreting the law as you wrote it. The Speaker of the House was held incontempt of the Sandiganbayan.

SUSPENSION AS A PENALTYQ: Can imprisonment of 10 days be imposed if found guilty? A: No. Administrative cannot impose penalties which involve deprivation oflife and liberty. Hence cannot impose imprisonment,

Doctrine of Condonation – only in administrative cases





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AGUINALDO vs. SANTOS – term of elective officials are distinctfrom each other and when elected again the public is deemed to havecondoned his past misconduct; he cannot be punished under the new termof office.

PROHIBITIONS/ INHIBITIONS/ DISQUALIFICATIONS

1. Article IX-B, Section 7 , par 1 – “No elective official shall be el igiblefor appointment or designation in any capacity to any public officeor position during his tenure.”

General Rule: “No elective official shall be eligible for appointmentor designation in any capacity to any public office or position duringhis tenure.”

Exception: Elective official can hold other positions/ office in an ex-officio capacity. The prohibition extends only to public and not toprivate positions. (FLORES vs. DRILON)

2. Article IX-B, Section 7 , par 2 – “Unless otherwise allowed by law orby the primary functions of his position, no appointive official shall

hold any other office or employment in the Government or anysubdivision, agency, or instrumentality thereof, includinggovernment owned and controlled corporations or theirsubsidiaries.”

General Rule: Appointive official not allowed from holding otherposition in the government

Exceptions: a. allowed by lawb. allowed by the primary functions of their position

(CIVIL LIBERTIES UNION vs. EXECUTIVESECRETARY)

3. Article VII Section 13, par 1 – “The President, Vice-President, themembers of the Cabinet, and their deputies or assistants shall not,unless otherwise provided in this Constitution, hold any other officeor employment during their tenure. They shall not, during saidtenure, directly or indirectly, practice any other profession,participate in any business or be financially interested in anycontract with, or in any franchise, or special privilege granted by theGovernment or any subdivision, agency or instrumentality thereof.Including government owned or controlled corporations or theirsubsidiaries. They shall strictly avoid conflict of interest in theconduct of their duties.”

General Rule: President, Vice President, Cabinet Members,deputies, assistants shall not hold any office or employment

*the provision is new*the prohibition is broad – covers both public and private

position

Exception: Unless otherwise provided in the 1987 Constitutione.g. 1) Vice President may become member ofthe Cabinet

2) Secretary of Justice is an ex-officiomember of JBC

CIVIL LIBERTIES UNION vs. EXECUTIVE SECRETARYPresident Aquino issued an executive order (EO284)

allowing her Cabinet members to hold more than 2 offices. Theappointments were challenged by the Civil Liberties Union. Defenseof the Solicitor General, members of the Cabinet are appointiveofficials hence Article IX-B sec 7 (2) shall apply and that they fallunder the exception.

SC: this cannot be allowed. The work of the cabinet membersdemands full time work. Their position is sui generis. Article VII,section 13 is a new provision. The reason is to avoid what happened in theMarcos era. It is a special provision which applies to Cabinet members. Article IX-B sec. 7 (2) on the other hand is a general provision. Hence, theEO is unconstitutional.

*see also PUBLIC INTEREST CENTER vs. ELMA June 30, 2006

4. Article VI section 13 – “No Senator or Member of the House ofRepresentatives may hold any other office or employment in thegovernment, or any subdivision, agency or instrumentality thereof,including government owned or controlled corporations or their

subsidiaries during his term without forfeiting his seat. Neither shallhe be appointed to any office which may have been created nor theemoluments thereof increased during the term for which he waselected.• Prohibition on incompatible and forbidden office

5. Article XVI, Section 5, par 4 – “ No member of the armed forces inthe active service shall, at any time be appointed or designated inany capacity to a civilian position in the Government includinggovernment owned or controlled corporations or any of theirsubsidiaries





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6. Law on Nepotism! Violation results to dismissal with forfeiture of benefits! Found in the Civil Service Law! Under Section 59, Civil Service Law – “ All appointments in the

national, provincial, city, and municipal governments or in anybranch or instrumentality thereof, including government owned

or controlled corporations, made in favor of a relative of theappointing or recommending authority, or of the chief of thebureau or office or of the persons exercising immediatesupervision over him, are hereby prohibited.

The word “relative” and members of the family referred to arethose related within third (3rd) degree of either consanguinity ofaffinity.”

CSC vs. DACOYCOY April 1999 En BancUnder the law on nepotism, a public official is guilty of

nepotism, if an appointment is issued in favor of a relative within thethird civil degree of consanguinity or affinity of any of the following:

a. Appointing authorityb. Recommending authorityc. Chief of bureau or officed. One who exercises immediate

supervision over the appointee

SC: Clearly, there are four situations covered. In the last twomentioned situations, it is immaterial who the appointing orrecommending authority is. To constitute a violation of the law, itsuffices that an appointment is extended or issued in favor of arelative within the third civil degree of consanguinity or affinity of thechief of the bureau or office, or the person exercising immediatesupervision over the appointee.

EXCEPTIONS TO THE LAW ON NEPOTISM1. Teachers2. Physicians3. Persons employed in a confidential capacity4. Members of the Armed Forces of the Philippines5. Member of a family who, after his or her appointment to any

position in an office or bureau, contacts marriage withsomeone in the same office or bureau, in which event, theemployment or retention therein of both husband and wife maybe allowed.

Under Article VII, Section 13 – “ The President may not appoint hisspouse or relatives within the 4th civil degree of consanguinity oraffinity to

a. Member of Constitutional Commissionb. Office of the Ombudsmanc. Secretaries and Undersecretaries

d. Chairman, heads of bureau or officesProhibited relationships! Under the Civil Service Law = 3rd Civil Degree! Under the LGC = 4th civil degree SEC. 79. Limitation on

Appointments. - No person shall be appointed in the careerservice of the local government if he is related within the fourthcivil degree of consanguinity or affinity to the appointing orrecommending authority.

DEBULGADO vs. CIVIL SERVICE COMMISSIONIt was contended that the law on nepotism applies only to

original appointments but not to promotional appointments.

SC: The law on nepotism applies to all kinds of appointmentbecause the law does not distinguish.

A textual examination of Section 69 at once reveals thatthe prohibition was cast in comprehensive and unqualified terms.Firstly, it explicitly covers “all appointments” without seeking tomake ay distinction between differing kinds or types ofappointments. Secondly, Section 59 covers all appointments to thenational, provincial, city, and municipal governments, as well as anybranch or instrumentality thereof and all government owned orcontrolled corporations. Thirdly, there is a list of exceptions set outin Section 59 itself, but it is a short list.

Both an original appointment and a promotion areparticular species of personnel action. The original appointment of

a civil service employee and all subsequent personnel actionsundertaken by or in respect of that employee such as promotion,transfer, reinstatement, reemployment, etc. must comply with theImplementing Rules including of course the prohibition againstnepotism in Rule XVIII.

The conclusion we reach is that Section 59 Book V, EO292 means exactly what it says in plain and ordinary language. Itrefers to all appointments whether original or promotional in nature.The public policy embodied in section 59 is clearly fundamental inimportance, and the court has neither authority nor inclination to





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dilute that important public policy by introducing a qualification ordiscretion here.

LAUREL vs. CSCLaurel who was the governor of Batangas granted his

brother, Benjamin Laurel a promotional appointment as CivilSecurity Officer, a position classified as primary confidential by the

Civil Service.Q: Was there a violation of the law on nepotism? A: No. It is under the exceptions of the law

Later on, he designated his brother to the position ofProvincial Administrator a position in the Career Civil Service.Laurel contends that he did not violate the law on nepotismbecause he merely designated his brother not appointed him.Designation presupposes that he has already been appointed andmerely given additional function.SC: The appointment or designation as Acting Provincial Administrator was violative of the prohibition against nepotism, thenembodied in Section 49 PD No. 807. Moreover, the Courtemphatically agrees with the CSC that although what was extended

to Benjamin was merely a designation and not an appointment xxxthe prohibitive mantle on nepotism would include designationbecause what cannot be done directly cannot be done indirectly.We cannot accept petitioner’s view. His specious and tenuousdistinction between appointment and designation is nothing morethan either a play ingeniously conceived to circumvent the rigid ruleon nepotism or a last ditch maneuver to cushion the impact of itsviolation. The rule admits of no distinction between appointmentand designation. “Designation” is also defined as all appointment orassignment to a particular office, and “to designate” means toindicate, select, appoint, or set apart for a purpose of duty.

*for purposes of the law on nepotism, appointment and designation

are the same.

7. Section 90, LGC – “Practice of Profession –(a) All governors, city and municipal mayors are prohibited from

practicing their profession or engaging in any occupation other than theexercise of their functions as local chief executives.

(b) Sanggunian members may practice their professions, engage inany occupation, or teach in schools except during session hours,Provided, that sanggunian members who are also members of the Barshall not:

(1) Appear as counsel before any court in any civil casewherein a local government unit or any office, agency orinstrumentality of the government is the adverse party;

(2) Appear as counsel in any criminal case wherein anofficer or employee of the national or local government is accusedof an offense committed in relation to his office;

(3) Collect any fee for their appearance in administrative

proceedings involving the local government unit of which he is anofficial; and(4) Use property and personnel of the Government except

when the Sanggunian member concerned is defending the interestof the government.

(c) Doctors of medicine may practice their profession even duringofficial hours of work only on occasions of emergency. Provided,that officials concerned do not derive monetary compensationtherefrom.

Q: Can a mayor practice his profession? A: No.

Q: Can members of the sanggunian practice their profession? A: Yes, except during session hours.

Q: Can Vice mayor exercise his profession? A: Yes. Vice Mayor belongs to the legislative, while sanggunian

members must be interpreted in general terms. There is noprohibition. Hence, the Vice Mayor can e belongs to the legislative,while sanggunian members must be interpreted in general terms.There is no prohibition. Hence, the Vice Mayor can exercise orpractice his profession. However, in case the Vice Mayor becomesacting mayor or acting governor, he cannot practice or exercise hisprofession because in such case then, he exercises an executiveposition. (Atty. Sandoval)

JAVELLANA vs. DILG Atty. Javellana is a member of the Sanggunian

Panlalawigan. Two of the employees of the Provincial Engineer’s Officewere removed. They asked for his assistance and so Atty. Javellanaappeared in their behalf. He was prohibited from appearing on theground that the same is prohibited by the LGC where the adverse partyis the government. He went to the Supreme Court and challenged theconstitutionality of Section 90, LGC on two grounds: 1) the provision isunconstitutional because it encroached the power of the Supreme Court





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to regulate the practice of law; and 2) the provision violates the equalprotection clause because the law profession was singled out.

SC: There is no encroachment on the power of the SC toregulate the practice of law. Section 90 LGC is a reasonable regulationdesigned to ensure that there shall be no conflict of interest in theexercise of his functions as a sanggunian member and his function as a

lawyer. There is no violation of the equal protection clause. Underthe equal protection clause, not all classifications are invalid. There is asubstantial distinction between the law profession and the otherprofessions. Of all the professions, it is this profession that is most likelyto affect the area of public service.

Moreover, Section 90 LGC does not discriminate againstlawyers and doctors. It applies to all provincial and municipal officials inthe professions or engaged n any occupation. It explicitly provides thatSanggunian members may practice their professions, engage in anyoccupation, or teach in schools except during session hours. If there aresome prohibitions that apply particularly to lawyers, it is because of allthe professions, the practice of law is more likely than others to relateto, or affect, the area of public service.

8. SEC. 40. Disqualifications. - The following persons are disqualifiedfrom running for any elective local position:(a) Those sentenced by final judgment for an offense involving moralturpitude or for an offense punishable by one (1) year or more ofimprisonment, within two (2) years after serving sentence; (b) Thoseremoved from office as a result of an administrative case;(c) Those convicted by final judgment for violating the oath ofallegiance to the Republic;(d) Those with dual citizenship;(e) Fugitives from justice in criminal or nonpolitical cases here orabroad;(f) Permanent residents in a foreign country or those who have

acquired the right to reside abroad and continue to avail of the sameright after the effectivity of this Code; and(g) The insane or feeble-minded.

VACANCIES AND SUCCESSIONS (Section 44-45, LGC)

Section 44, LGC – “Permanent vacancies in the offices of theGovernor, Vice Governor, Mayor and Vice Mayor. - If a permanent vacancyoccurs in the office of the governor or mayor, the vice governor or vicemayor concerned shall become the governor or mayor. If a permanent

vacancy occurs in the offices of the governor, vice governor, mayor or vicemayor, the highest ranking sanggunian member shall become the governor,vice governor, mayor or vice mayor as the case may be. Subsequentvacancies in the said offices shall be filled automatically by the othersanggunian members according to their ranking as defined herein.

(b) If a permanent vacancy occurs in the office of the punong

barangay, the highest ranking sangguniang barangay member or in case ofhis permanent inability, the second highest ranking sanggunian membershall become the punong barangay.

(c) A tie between or among the highest ranking sanggunianmembers shall be resolved by drawing of lots.

(d) The successors as defined herein shall serve only the unexpiredterms of their predecessors.

For purposes of this Chapter, a permanent vacancy arises when anelective local official fills a higher vacant office, refuse to assume office, failsto qualify, dies, is removed from office, voluntarily resigns, or is otherwisepermanently incapacitated to discharge the functions of his office.

For purposes of succession as provided in this chapter, ranking inthe sanggunian shall be determined on the basis of the proportion of votes

obtained by each winning candidate to the total number of registered votersin each district in the immediately preceding local election.

*In case of permanent vacancy (section 44) automatic succession applies,so in case of death of mayor, the vice mayor succeeds, in case of the vicemayor, the highest ranking sangguniang member succeeds.

Illustration:

District I (10,000) District II (8,000)

1. Pedro 5,000

2. Mario 4,500

3. Jose 5,000

Q: For purposes of succession, how do you determine ranking? A: For purposes of succession, ranking in the sanggunian shall bedetermined on the basis of the proportion of votes obtained by each winningcandidate to the total number of registered voters in each district in theimmediately preceding local election (sec 44, LGC last par)*Therefore Mario is the highest ranking member.





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Q: Who is ranking between Pedro and Jose? A: A tie between or among the highest ranking Sanggunian members shallbe resolved by the drawing of lots. (Sec. 44 par c, LGC)

Q: Let us assume that 8 sanggunian members, the last ranking died. Whathappens? A: Apply sec. 45 LGC, not the ru le on automat ic succession.

Section 45, LGC – “Permanent vacancies in the Sanggunian – (a)Permanent vacancies in the sanggunian where automatic successionsprovided above do not apply shall be filled by appointment in the followingmanner:

(1) The President, through the executive secretary, inthe case of the sangguniang panlalawigan and thesangguniang panlungsod of highly urbanized citiesand independent component cities;

(2) The governor, in the case of the sangguniangpanlungsod of component cities and sanggunianbayan;

(3) The city or municipal mayor, in the case ofsangguniang barangay, upon recommendation of the

sangguniang barangay concerned.

(b) Except for the sangguniang barangay, only the nominee of thepolitical party under which the sanggunian member concerned had beenelected and whose elevation to the position next higher in rank created thelast vacancy in the sanggunian shall be appointed in the manner herein afterprovided. The appointee shall come from the same political party as that ofthe sanggunian member who caused the vacancy and shall serve theunexpired term of the vacant office. In the appointment therein mentioned, anomination and certificate of membership of the appointee from the highestofficial of the political party concerned are conditions sine qua non, and anyappointment without such nomination and certification shall be null and voidab initio and shall be ground for administrative action against the official

responsible therefor.(c) In case the permanent vacancy is caused by a sanggunianmember who does not belong to any political party, the local chief executiveshall, upon recommendation of the sanggunian concerned, appoint aqualified person to fill the vacancy.

(d) In case of vacancy in the representation of the youth and thebarangay in the sanggunian, said vacancy shall be filled automatically by theofficial next in rank of the organization concerned.

Q: Who shall appoint? A: (1) Sangguniang Bayan

GovernorSangguniang PAnglungsod in component cities

(2) Sangguniang Panglungsod of Highly Urbanized CitiesSangguniang Panglungsod of Independent Component Cities

President

Sangguniang Panlalawigan*If one who will be replaced belongs to a political party, the successor mustcome from the same political party.If he does not belong to a political party then apply Sec. 45(c)

Q: Who shall appoint? A: Local chief executive upon the recommendation of the sanggunianconcerned.

FARIÑAS vs. BARBAThe last ranking sanggunian bayan member who did not

belong to any political party resigned. To fill the vacancy, both the mayor andthe governor appointed their own choice.

SC: Neither of the two appointees should assume position.Sec 45 (c) LGC must be read together with Sec 45 (a). Since this is amunicipality, the governor should appoint but with the recommendation ofthe sanggunian concerned which is the sanggunian bayan where thevacancy took place.

NAVARRO vs. CAComposition of the municipal government:

Mayor ………………………………………………… LakasNUCD

Vice Mayor…………………………………………. LakasNUCD

1

st

to 5

th

sanggunian member…………….. Reporma6th Sanggunian Member…………………….. Lakas NUCD7th Sanggunian Member…………………….. Reporma8th Sanggunian Member…………………….. Lakas NUCD

Therefore in the Sanggunian, there were 6 Reporma and 2 Lakas.The mayor died. The Vice mayor became the Mayor. The last rankingposition became vacant so the governor appointed someone from Reporma.Lakas protested because the vacancy came from Lakas.





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SC: Governor is correct. What is crucial is the interpretation of Sec. 45(6). The reason behind the right given to the political party to nominate areplacement is to maintain the party representation as willed by the people inthe election.

With the elevation of Tamayo (Reporma) as the Vice Mayor itdiminished the Reporma’s representation in the Sanggunian. Hence, the oneappointed should come from Reporma.

GAMBOA JR. vs. AGUIRRE JR. July 20, 1994The governor went abroad. He was away for 3 months. Governor

issued an administrative order designating the Vice governor as actinggovernor. The acting governor wants to preside in the session of thesanggunian.

SC: Being the acting governor, he cannot simultaneously exercise thefunctions of his office. The power of the vice governor to preside oversanggunian session is suspended as long as he is the acting governor.

The creation of temporary vacancy in the office of the governorcreates a corresponding vacancy in the office of the vice governor.

Q: Then who will preside in the meantime? A: Under sec. 49 (b) LGC – “In the event of the inability of the regularpresiding officer to preside at a sanggunian session, the members presentand constituting a quorum shall elect from among themselves a temporarypresiding officer. He shall certify within ten (10) days from the passage ofordinances enacted and resolutions adopted by the sanggunian in thesession over which he temporarily presided.“ Hence, the members presentand constituting a quorum shall elect from themselves the temporarypresiding officer. Do not apply the rule in permanent vacancy.Q: Who appoints the barangay treasurer, secretary and other appointiveofficials of the barangay? A: Punong barangay appoints barangay secretary, treasurer, and otherappointive official with the approval of the majority of the members of the

sangguniang barangay. (ALGUIZOLA vs. GALLARDO)

The power of appointment is exercised with approval of sanggunian,therefore in removing or replacing an appointive official, there must also beapproval of the majority of sanggunian barangay members.

Sec. 388, LGC – “Persons in authority – For purposes of the RPC,the punong barangay, sanggunian barangay members and members of thelupong tagapamayapa in each barangay shall be deemed as persons inauthority in their jurisdiction, while other barangay officials and memberswho may be designated by law or ordinance and charged with the

maintenance of public order, protection and security of life and property, orthe maintenance of a desirable and balanced environment and anybarangay member who comes to the aid of persons in authority shall bedeemed agents of persons in authority.

RECALL ! Provided in Section 69-75, LGC. This is a mode of removing a

local elective official before the expiration of his term.GARCIA vs. COMELEC

! There is no need for a criminal charge before a recall may beinitiated.

! There is only one ground, loss of confidence

EVARDONE vs. COMELEC A recall is a political question not subject to judicial review. It is a

political question that has to be decided by the people in their sovereigncapacity.

2 STAGES1. Initiatory

2. Special Recall Election

*The official sought to be recalled becomes a candidate automatically.Hence, he is prohibited from resigning.

* There is only one way of initiating a recall – through a petition signed by atleast:

25% of registered voters – below or 20,000 total registered votersof LGU concerned

20% of registered voters – more than 20,000 but less than 75,000total registered voters of LGUconcerned

15% of registered voters – more than 75,000 but less than 300,000

total registered voters ofLGU concerned10% of registered voters – more than 300, 000 total registered

voters of LGU concerned

*The PREPARATORY RECALL ASSEMBLY (PRA) has been REPEALED.(RA 9244)

ANGOBUNG vs. COMELEC A was a mayor, a year after his election was sought to be recalled.

There was a recall process initiated by only one person. The COMELEC





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approved the petition and assigned a signing day. Angubong went to the SCalleging grave abuse of discretion.

SC: The petition for recall signed by only one person is a violation of the25% statutory requirement. The law is plain and unequivocal as to whatconstitutes a recall proceeding.

LIMITATION ON RECALL (SEC.74)a. An elective official can be subjected to recall only onceb. No recall shall take place within one year from the assumption of

office or one year immediately preceding a regular local election.

PARAS vs. COMELECParas was a punong barangay. There was a petition for recall. The

SK election was scheduled during that year when the petition was filed. Thecontention of PAras was that there would be a regular election; hence therecall cannot push through.

SC: The term regular local election refers to one where the position ofone sought to be recalled is actually to be contested and filled by theelectorate.

ANGOBUNG vs. COMELECThe limitation on recall shall not apply if the official sought to be

recalled is a Mayor and the forthcoming election is a barangay election.

CLAUDIO vs. COMELECThe issue in this case is the interpretation of “within one year from

the date of assumption to office.” Claudio was elected as Mayor. His termstarted 30 June 1998. On 19 May 1999, members of the then PreparatoryRecall Assembly convened on their plans to initiate a petition for recallagainst Claudio. On 29 May 1999, majority of the members of the PRAadopted a resolution calling for the recall of Mayor Claudio. It was submitted2 July 1999. The Comelec scheduled a special recall election.

SC: the resolution was validly adopted. The recall refers to the electionitself wherein the voters themselves decide whether or not to retain theofficial concerned. It does not refer to the initiation proceedings.

SOCRATES vs. COMELECOn May 2001, the governor elected was Socrates. 2 July 2002,

members of the Preparatory Recall Assembly adopted a resolution callingfor the recall of Governor Socrates. 24 September 2002 there would be arecall election. On 15 July 2002, there was a barangay election. Most of themembers who signed the recall resolution lost in the election. Hence, it was

contended that those who signed have no mandates because they lost in theelection.SC: The contention is not correct, when the members adopted theresolution, their term of office have not yet expired. They were still de jureofficers with no legal disqualification to participate.

AFIALDO vs. COMELECMiranda was elected Mayor. On the other hand, Navarro was

elected the Vice Mayor. Members of the Preparatory Recall Assemblyadopted a resolution calling for the recall of Vice mayor Navarro. MayorMiranda was removed by SC. The Vice mayor assumed office.SC: The recall elections become moot and academic. It is clear fromthe resolution that they wanted to remove him from being a vice mayor.

AFIALDO vs. COMELECBefore vice mayor Amelita Navarro assumed mayorship, Joel

Miranda was still mayor. Decision in MIRANDA vs. ABAYA was not yetpromulgated. When she was vice mayor, the members of the PRA ofSantiago City adopted a resolution calling for the recall of vice mayor. Thisresolution was submitted to Comelec. A special recall election was thenscheduled. Meanwhile the decision in the Miranda vs. Abaya was

promulgated. Vice mayor Navarro assumed the mayorship upon the removalof Joel Miranda as mayor. What happens now to the special recall electionfor vice mayor?SC: it has been rendered moot and academic. It is clear from theresolution of the members of the preparatory center of Santiago City thatthey wanted to recall her as vice-mayor. They got what they wanted. She isno longer the Vice-mayor. She is now the Mayor. &

LOCAL GOVERNMENT UNITS/ AUTONOMOUS REGIONS/ADMINISTRATIVE REGIONS

Article X, Section 1 – “The territorial and political subdivis ions of theRepublic of the Philippines are the provinces, cities, municipalities, and

barangays. There shall be autonomous regions in Muslim Mindanao and theCordilleras as herein after provided.”

AUTONOMOUS REGIONS Article X, Section 15 – “There shall be created autonomous regions

in Muslim Mindanao and in the Cordilleras consisting of provinces, cities,municipalities, and geographical areas sharing common and distinctivehistorical and cultural heritage, economic and social structures, and otherrelevant characteristics within the framework of this Constitution and thenational sovereignty as well as territorial integrity of the Republic of thePhilippines.”





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ADMINISTRATIVE REGIONSMere grouping of provinces for administrative purposes. They are

not considered as political and territorial subdivision. There is a need for aplebiscite to be a political subdivision.

E.g. Region 1

Q: Who has the power to create administrative regions? A: It has been traditionally exercised by the President in line with hissupervisory powers over the LGUs.

LIMBORA vs. MARGELINConcept of Local Autonomy

Decentralization of Administration

! Central governmentdelegatesadministrative powerto local government inorder to broaden thebase of thegovernment.

Decentralization of Power

! Abdication of politicalpower in favor of LGU;free to chart its owndestiny.

Q: What kind of autonomy is contemplated by the Constitution? A: Only decentralization o f administration, as not to make the LGU sovereignwithin the state. But with regards to autonomous region, decentralization ofpower which contemplates grant of political autonomy.

METROPOLITAN POLITICAL SUBDIVISION Article X Section 11 – “The Congress may, by law, create special

metropolitan political subdivisions, subject to a plebiscite as set forth insection 10 hereof. The component cities and municipalities shall retain theirbasic autonomy and shall be entitled to their own local executives andlegislative assemblies. The jurisdiction of the Metropolitan Authority that will

thereby be created shall be limited to basic services requiring coordination.

Q: Is MMDA a special metropolitan political subdivision? A: No! The creation of MMDA was not subject to a plebiscite. Also MMDAhas no police or ordinance power. It is purely administrative.

MMDA vs. BEL-AIR VILLAGEIn view of the traffic congestion, Bel-Air was compelled to open its

village to the public.

SC: This cannot be done. The MMDA is not a political unit; not a LGU;nor a metropolitan political subdivision. The chairman was not elected by thepeople. It is the LGU that possesses legislative and police power.

DUAL NATURE OF LGU1. Body politic2. Body corporate

DUAL FUNCTION OF LGU1. Acting as body politic- governmental2. Acting as a corporate entity representing the inhabitants-

proprietary

TWO KINDS OF PROPERTY OF LGU1. Properties for public service – owned in the governmental capacity

e.g. streets2. Patrimonial property – owned in their proprietary capacity e.g. north

cemetery

DACANAY CaseProperty owned for public service cannot be a subject of a contract.

CONDITIONS BEFORE A PROPERTY OWNED FOR PUBLIC SERVICEBE CONVERTED TO PATRIMONIAL PROPERTY

1. Continuous non use for public service2. Positive act from legislative branch withdrawing use of property

from public service

MAKASIANO vs. COMELECIn this case, there was a positive act from Congress but the same is

not enough because the two requirements must be met.

CREATION, DIVISION, MERGER, ABOLITION, OR SUBSTANTIALALTERATION OF BOUNDARY

Article X, Section 10 – “No province, city , munic ipality, or barangaymay be created, divided, merged, abolished, or its boundary substantiallyaltered, except in accordance with the criteria established in the LocalGovernment Code and subject to approval by a majority of the votes cast ina plebiscite in the political units directly affected.”

TWO REQUIREMENTS1. It must be according to the criteria established in the LGC.

Criteria established under the LGC:Veritable indicators





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a. incomeb. populationc. land area

2. Subject to the approval by a majority of the votes cast in aplebiscite in the political units directly affected.

Q: Who shall vote? A: PADILLA vs. COMELEC

Voters are not limited to the voters of the new area but also thevoters of the parent unit. Since the parent unit is also affected.

*The doctrine under Paredes has been abandoned by TAN vs. COMELEC,as reaffirmed in the Padilla vs. Comelec.

Q: In the income requirement, should the IRA be included in thecomputation? A: Yes.

ALVAREZ vs. GUINGONACongress passed a law creating Santiago. The IRA was excluded.

SC: The basis of IRA is Article X, Sec 6. This is not self-executing. It isimplemented in the LGC.

LGU’s are entitled to 40% of the total national taxes. Theallocations in Sec 285 LGC- Allocations to Local Government Units.- Theshare of local government units in the internal revenue allotment shall beallocated in the following manner:

a. Provinces – 23%b. Cities – 23%c. Municipalities – 34%d. Barangays – 20%

Hence, IRAs are regular recurring income. It does not constitute asa mere transfer. It should be included in the computation. It is an income of

the LGU.MAIN SOURCES OF INCOME OF LGU’s

1. Article X, Section 5 – “Each local government unit shall have thepower to create its own sources of revenues and to levy taxes,fees, and charges subject to such guidelines and limitations as theCongress may provide, consistent with the basic policy of localautonomy. Such taxes, fees and charges shall accrue exclusively tothe local government.”

2. IRA

Article X, Section 6 – “ Local government units shall have a justshare, as determined by law, in the national taxes which shall beautomatically released to them.”

3. Equitable share in the proceeds of the utilization and developmentof national wealth. Article X, Section 7 –“ Local governments shall be entitled to anequitable share in the proceeds of the utilization and developmentof national wealth within their respective areas, in the mannerprovided by law, including sharing the same with the inhabitants byway of direct benefits.”

MUNICIPALITY OF PARAÑAQUE vs. VM REALTYThe municipality expropriated a property to be converted into a

Youth Center. The issue is: what is required in order for LGU to exercise itseminent domain powers?

SC: Under Section 19, LGC, an ordinance is required.Section 19, LGC – “Eminent Domain – a local government unit,

may through its chief executive and acting pursuant to an ordinance,exercise the power of eminent domain for public use, or purpose, or welfarefor the benefit of the poor and the landless, upon payment of just

compensation, pursuant to the provisions of the Constitution and pertinentlaws. Provided, however, that the power of eminent domain may not beexercised unless a valid and definite offer has been previously made to theowner, and such offer was not accepted; Provided further that the localgovernment unit may immediately take possession of the property upon thefiling of the expropriation proceedings and upon making a deposit with theproper court of at least fifteen percent (15%) of the fair market value of theproperty based on the current tax declaration of the property to beexpropriated. Provided finally, that the amount to be paid for theexpropriated property shall be determined by the proper court based on thefair market value at the time of the taking of the property.”

Ordinance vs. Resolution

Ordinance Resolution-is a law - merely a declaration of sentiment

or opinion of the lawmaking body

- possesses a general; permanentcharacter

- temporary

- a third reading on its enactment isrequired

- no reading in its enactment isrequired unless approved by majorityof sanggunian members





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Q: Do LGUs have inherent powers? A: None. They are pure creations of the legislat ive branch.

POWER TO TAXOf the three powers of the state, the power to tax is constitutionally

delegated power to LGU, subject to guidelines as the Congress may providein accordance with Article X sec. 5.

POLICE POWER ; EMINENT DOMAINThey are delegated by the Congress not by the Constitution

*Police Power: Section 16, LGC – General Welfare – “Every localgovernment unit shall exercise the powers expressly granted, thosenecessarily implied therefrom, as well as powers necessary, appropriate, orincidental for its efficient and effective governance, and those which areessential to the promotion of the general welfare. Within their respectiveterritorial jurisdictions, local government units shall ensure and support,among other things the preservation and enrichment of culture, promotehealth and safety, enhance the right of the people to a balanced ecology,encourage and support the development of appropriate and self-reliant

scientific and technological capabilities, improve public morals, enhanceeconomic prosperity and social justice, promote full employment among theirresidents, maintain peace and order and preserve the comfort andconvenience of their inhabitants.

*Eminent Domain: SEC. 19. Eminent Domain. - A local governmentunit may, through its chief executive and acting pursuant to an ordinance,exercise the power of eminent domain for public use, or purpose, or welfarefor the benefit of the poor and the landless, upon payment of justcompensation, pursuant to the provisions of the Constitution and pertinentlaws: Provided, however, That the power of eminent domain may not beexercised unless a valid and definite offer has been previously made to theowner, and such offer was not accepted: Provided, further, That the local

government unit may immediately take possession of the property upon thefiling of the expropriation proceedings and upon making a deposit with theproper court of at least fifteen percent (15%) of the fair market value of theproperty based on the current tax declaration of the property to beexpropriated: Provided, finally, That, the amount to be paid for theexpropriated property shall be determined by the proper court, based on thefair market value at the time of the taking of the property.

---- End----Good Luck and God Bless Us all.

DEVELOPMENTS IN PUBLIC INTERNATIONAL LAW

By: Atty. Edwin Sandoval

(1) An individual person as subject of international law

Subject of international law defined

- an entity which has an international personality

- an entity has an international personality if it hasrights which may be directly enforced or it hasobligations for which it may be held directlyaccountable under international law.

$an entity although it has rights, but which can beenforced only through another medium is not asubject. It is merely an object.

* Two views:

a.) Traditional view – only states are subject of international law.

- only states have rights which may be directly enforced orhave obligation for which it may be held directly accountableunder international law.

b.) Modern view – not only states are proper subjects ofinternational law.

- international organizations (ie. United Nations) are alsoproper subjects of international law.

- to a limited extent, the individual is now considered asproper subject of international law.

Govt. of HK special administrative region (represented by Phil. DOJ)

vs. Hon. Olalia- the modern trend in public international law is the primacy place

on the worth of the individual person and the sanctity of human rights.

- slowly, the recognition that the individual person may properly bea subject of international law is taking root.

- the vulnerable doctrine that the subject of international law arelimited only to states was dramatically eroded towards the second half of thepast century.





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- for one, the Nurumberg and Tokyo trials after WWII resulted in theunprecedented spectacle of individual defendants prosecuted for acts

characterized as violations of the laws of war, crimes againstpeace, and crimes against humanity.

- recently, under the Nurumberg principle, Serbian leaders havebeen prosecuted for war crimes and crimes against humanity committed inthe former Yugoslavia.

- these significant events show that the individual person is now avalid subject of international law.

$ when the individuals were held directly accountable for theircrimes, he is no longer regarded as a mere object of international law, hehas become a subject of international law.

$ the justification for assumption of jurisdiction over the individualis that crimes against international law are committed by men and not byabstract entities. It is only by punishing individuals who commit such crimescan the provisions of international law be enforced.

$ another instance when an individual is regarded as subjects ofinternational law is in case of human rights violations.

- more often, an individual’s human rights is violated by hisown government such that he cannot have a recourse against his owngovernment.

- he may have recourse to the international human rightsbody.

(2) Creation/establishment of International Criminal Court

* ICC vs. ICJ

ICJ ICC

- was created pursuant to thecharter of the UN itself.

- was created by a separate treatyknown as the Rome statute.

- it is the principal judicial organ ofthe UN.

- it is a separate body.

- only states may be parties todisputes in international court of justice.

- international criminal court will trypersons/individuals, not states, whocommit the most serious crimes ofinternational concern.

* Jurisdiction of the International Criminal Court over thefollowing offenses:

a.) genocide

b.) crimes against humanity

c.) war crimes

d.) crimes of aggression$ common characteristics of the four – they are the most serious crimes

of international concern.

$ terrorism is not included.

Genocide – the deliberate destruction or annihilation of a racial,ethnic or religious group.

Ex. Holocaust during the WWII – deliberate policy of Hitlerto eliminate all the jews in the world.

* Organization of International Criminal Court

- 18 judges

- subject to increase in number by authority of Article 36 ofits statute

- organized into: a) appeal division – president and fourother judges

b) trial division – three judges

c) pre-trial division – three judges

- the judicial functions are carried out by judges inchambers

- the workload of the court may require more than one trialchamber or pre-trial chamber

- judges of Appeals chamber shall serve only in thatdivision

- other organs of the court: a) presidency

b) office of the prosecutor

c) registry (office of clerkof court)

rd





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Principle of Complementarity

- the international criminal court shall be complementary tonational criminal jurisdiction.

- this gives primacy to national jurisdiction. If the nationalcourt has already assumed jurisdiction, icc can no longer assume jurisdiction.

- unless, the proceeding in the national court is:

a) for the purpose of shielding the person concerned from liability; or

b) not conducted independently or impartially.

(3) International Human Rights

Human Rights

- those liberties, immunities, and benefits which all humanbeings should be able to claim “as of right” of thesociety in which they live by accepted

contemporary values.

- those fundamental and inalienable rights which areessential for life as a human being.

- pertain to rights of an individual as a human being whichare recognized by the international community as awhole through their protection and promotion undercontemporary international law.

International Law on Human Rights

- the law which deals with the protection of individuals andgroups against violations by government of their internationally

guaranteed rights, and with the promotion of theserights.

* Classification of Human Rights/ Three Generation of HumanRights:

a.) 1st generation of human rights – consisting of civil and political rights

b.) 2nd generation of human rights – consisting of economic, social andcultural rights.

c.) 3rd generation of human rights – consisting of right to development,right to peace and right to environment.

* Human rights are either:

a) individual

b) collective – right to self determination of people; thepermanent sovereignty over natural

resources.

International Bill of Rights

- the term used to designate the three main instrument ofhuman rights in the international plane, which are:

a) the universal declaration of human rights

b) the international covenant on economic, social& cultural rights

c) the international covenant on civil & politicalrights

$ Recognition and importance given to Human Rights by

international organizations and states

- on December 10, 1948, the UN General Assemblyadopted the Universal Declaration of Human Rights in whichthe right to life, liberty and all other fundamental rights of every person wereproclaimed.

- while not a treaty, the principles contained in the saiddeclaration are now recognized as customarily binding upon the members ofthe international community.

* Sources of International Law:

1) Primary

a) treaties or international conventionsb) international custom

c) general principles of law recognized bycivilized nations

2) Secondary

d) judicial decisions

e) teachings of authoritative publicists of variousnations.





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$ Universal Declaration of Human Rights, while not a treaty, hasevolved as an international custom, a primary source of international law.

$ The Philippines commitment to uphold the fundamental humanrights as well as the worth and dignity of every person

- commitment is enshrined in Section 2, Article II of our Constitution.

- it provides: “The state values the dignity of every human person and

guarantees full respect for human rights.”

- The Philippines has the responsibili ty of protecting and promoting the rightof every person to liberty and due process, ensuring that those detained orarrested can participate in the proceedings before a court, to enable it todecide without delay or the legality of the detention and order their release.

Govt. of HK special administrative region (represented by Phil. DOJ)vs. Hon. Olalia

- the Philippine authorities are under obligation to make available toevery person under detention such remedies which safeguard theirfundamental right to liberty.

- these remedies include the right to be admitted to bail

- while this court in the Purganan case, limited the exercise of theright to bail to criminal proceedings, however, in the light of variousinternational treaties giving recognition and protection to human rights,particularly the right to life and liberty, a re-examination of this Court’s rulingin the Purganan case is in order.

(4) International Humanitarian Law (IHL)

- used to be called laws of war/ laws of armed conflict (which mayrefer to both international armed conflict and internal armed conflict)

- that branch of public international law which governs armedconflict to the end that the use of violence is limited and that human sufferingis mitigated or reduced by regulating or limiting the means of military

operations and by protecting persons who do not or no longer participate inhostilities.

* Three Grand Divisions of International Law:

a) Laws of Peace – govern relations between and among nations undernormal circumstances.

b) Laws of War – govern relations between and among belligerent states(states at war) during wartime.

c) Laws of Neutrality – govern the relations of third states not parties to thewar with any of the belligerent states. (but the relations of third parties interse shall still be governed by the laws of peace)

* Principal legal documents are:

1.) Geneva Convention of 1949 – define fundamental rights forcombatants removed from the fighting due to injury, illness or

capture and for civilians.a) Geneva Convention for the Amelioration of the

Condition of the Wounded and Sick in Armed Forces inthe field of August 12, 1949

- first Geneva convention

- applies to armed forces in the field (land)

b) Geneva Convention for the Amelioration of theCondition of Wounded, Sick and Shipwrecked Members of Armed Forces a t Sea of Aug 12, 1949

- second Geneva convention

- applies to armed forces ate sea (navy)c) Geneva Convention Relative to the Treatment of

Prisoners of War of August 12, 1949- third Geneva convention

- deals with prisoners of war

d) Geneva Convention to the Protection of the CivilianPerson in time of war of August 12, 1949

- fourth Geneva convention

- applies to civilians

2.) 1977 Additional Protocols – supplement the Geneva

conventiona) Protocol Additional to Geneva Conventions of August

12, 1949 and Relating to the Protection of Victims ofInternational Armed Conflicts

- Protocol I of June 8, 1977

b) Protocol Additional to Geneva Conventions of August12, 1949 and Relating to the Protection of Victims ofNon-Internationa l Armed Conflicts

P t l II f J 8 1977 * F C t i f C b t t





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- Protocol II of June 8, 1977

$ IHL encompasses both humanitarian principles and internationaltreaties that seek to save lives and alleviate suffering of combatantsand non-combatants during armed conflict. It is not concerned with thelawfulness or unlawfulness of armed conflicts.

* International Humanitarian Law vs. Human Rights Law

IHL HRL

- applies in situations of armedconflict

- protects individuals at all times (inwar and peace alike)

- no derogation from certain rightsare permitted because it wasconceived for emergency situationsnamely armed conflict

- may permit of some derogationfrom certain rights in situations ofpublic emergency

- aims to protect people who do notor are no longer taking part inhostilities

$ the rules embodied in IHL imposeduties on all parties to a conflict

- tailored primarily for peace time;apply to everyone

$ their principal goal is to protectindividuals from arbitrary behaviorby their own government;

$ HRL does not deal with conductof hostilities.

- provides for specific mechanismsthat help its implementation

- human rights in implementingmechanisms are complex andincludes regional systems.

* Basic Rules of IHL:

(1.) Attacks must be limited to combatants and military targets

Combatants – persons taking direct part in hostilities ormembers of the armed forces.

Military targets – combatants and objects which by theirnature, location, purpose or use make an effective contribution tomilitary action and whose destruction offers a definite militaryadvantage.

$ Civilians shall not be attacked!

$ In case of doubt, a person shall be considered a civilian.

* Four Categories of Combatants:

a) Regular Forces – members of the armed forces except medicalpersonnel and chaplain.

b) Irregular Forces – consists of the guerilla and the militia

- they are treated as lawful combatants, provided:

i) they must be under the command of an officer responsible for theconduct of his men.

ii) they wear uniforms or insignia recognizable from a distance.

iii) they carry arms openly.

iv) they observe the laws and customs of war in the conduct oftheir hostilities.

c) Levee En Masse – civilians of an unoccupied territories whoupon approach of the enemy forces and

without having time to organize,spontaneously take up arms to resist the

invading forces.

- once captured, they are considered as combatants (notcivilians) and will be treated as a prisoner of war.

d) Officers and Crew of Merchant marinevessels who forcibly resist attack – oncecaptured, they are considered as combatants

and will be treated as prisoners of war.

Non-Privileged Combatants – although they have rights(limited/minimal), when

captured, are not entitled to be treated asprisoners of war.

- they do not form part of the regular or irregular forces butactually takes part directly or indirectly in the hostilities as:

a) spies

b) mercenaries – “soldiers for a fee”/ soldiers of fortune

$ A soldier, not wearing uniform during hostilities, runsthe risk of being treated as a spy; thus, not to be treatedas a prisoner of war.

BAR 1993: Reden, Jolan and Andy, Filipino tourists, were inBosnia-Herzegovina when hostilities erupted between the Serbs and the

M l P il d ht i th fi R d J l d it i hibit d t d th t th t th





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Moslems. Penniless and caught in the crossfire, Reden, Jolan and Andy, being reti red generals, offered their services to the Moslemsfor a handsome salary, which offer was accepted. When the SerbianNational Guard approached Sarajero, the Moslem civilian populationspontaneously took up arms to resist the invading troops. Not findingtime to organize, the Moslems wore armbands to identify themselves,vowing to observe the laws and customs of war. The three Filipinos

fought side by side with the Moslems. The Serbs prevailed resultingin the capture of Reden, Jolan and Andy, and part of the civilian fightingforce.

1) Are Reden, Jolan and Andy considered combatants thusentitled to treatment as prisoners of war?

NO. Reden, Jolan and Andy are not combatants becausethey are mercenaries. They offered their services to the Moslems for ahandsome salary. They are soldiers of fortune. They are notmembers of the armed forces but took part in the hostilities. They are non-privileged combatants and are not entitled to treatment as prisoners of war.

2) Are the captured civilians likewise prisoners of war?

YES. The captured civilians are prisoners of war. They fall

under the category of levee en masse. When the Serbian NationalGuard approached Sarjero, the Moslem civilian population spontaneouslytook up arms and resist the invading troops without having time toorganize. The Moslems wore armbands to identify themselves, vowing toobserve the laws and customs of war.

$ Civilian objects may not be attacked.

-using civilians to shield military targets is prohibited

- it is prohibited for combatants to pose as civilians

- starvation of civilians as a method of combat is prohibited

- it is prohibited to attack objects that are indispensable to

the survival of civilian population- it is prohibited to attack dams, dykes, nuclear power

plants, if such attack may cause severe losses among the civilianpopulation.

(2.) Attacks or weapons which indiscriminately strike civilian andmilitary objects and persons. And which cause excessive injury or sufferingare prohibited.

$ Specific weapons are prohibited.

- it is prohibited to order or threaten that thereshall be no survivors. (NoQuarter’s Order – “take no prisoners, kill al l”)

(3) Civilians, wounded combatants and prisoners should be spared, protected and treated humanely.

Hors De Combat – literally means “out of combat”

- disabled soldiers

(4) Military and civilian medical personnel and facilities (hospitals,clinics, ambulances, etc.) must be respected and protected and must begranted all available help for the performances of their duties.

* Concept of Belligerency

- may be understood in two senses:

a) state of war between two or more states

- the states at war are referred to as “belligerent states” or simply“belligerents”

- refers to international armed conflict (in this sense)

b) actual hostilities amounting to a civil war within a state

- there is just one single state here

- refers to non-international armed conflict or simplyinternal armed conflict

$ In both instances, IHL applies.

$ Belligerency in the sense of actual hostilities amountingto a civil war within a state presupposes theexistence of rebel movement within a state.

* Stages of Development of a Rebel Movement within a State

1) Stage of Insurgency - earlier stage/ less developed stage

- there is not much international complication as it is purely a matter ofmunicipal law.

2) Stage of Belligerancy - higher stage of rebellion, when rebelliondevelops and becomes widespread

already a matter of international law as there are now international 2) Ministrant





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- already a matter of international law as there are now internationalimplications.

- when the rebels attain the higher stage, in effect, you are admitting thatwithin a single state, there are now two

competing governments – legitimate government and rebel government.

- conduct of hostilities should now be governed by the laws and customs ofwar

- IHL will come into play

- captured rebels are considered combatants and must be treated asprisoners of war (they have rights)

- third states are to observe strict neutrality in their dealings either with therebel government or legitimate government

$ Non-observance of IHL could lead to sanctions.

* Minimum Conditions Before Rebels may Attain the Status ofBelligerency

1) if the rebels were able to organize a civil government that shall

have control and direction over the armed struggle they are wageringagainst the legitimate government.

2) if the rebels were able to occupy a substantial portion of thenational territory.

- occupation must be more or less permanent, such that to be ableto dislodge the rebels, the legitimate the government must use superior force

3) seriousness of the struggle, such that it must be so widespreadthereby leaving no doubt as to its possible outcome

4) if the rebels were able to observe the laws and customs of war

- willingness on their part to observe

* Two Functions of the Government:1) Constituent – constitute the very bends of society

Ex. Administration of justice

Maintenance of peace and order

Fixing the relations between husband and wife\

2) Ministrant

$ IHL will not apply to international conflict but also to non-internationalconflict.

(5.) The Law on Treaties

Jus Cogens Norm

- a peremptory norm of general international law- a norm accepted and recognized by the international community

of states as a whole as a norm from which no derogation is permitted andwhich can be modified only by a subsequent norm of general internationallaw having the same character.

- recognized in the Vienna Convention on the law oftreaties as a ground for invalidity and termination of treaties when they are inconflict with such norms.

$ peremptory means mandatory.

* Examples of norms considered as jus cogens in character

a) the prohibition against the use of force under the UN charter

b) the law on genocide

c) the principle of self determination

d) crimes against humanity

e) prohibition against slavery and slave trade

f) piracy

$ A treaty entered into by two states agreeing to invade another statewould have to be invalidated as it runs in conflict with a jus cogens

norm – the prohibition against the use of force under the UN charter.

Obligation Erga Omnes

- it is an obligation of every state towards the international community as awhole.

$ All states have a legal interest for its compliance, and thus all states areentitled to invoke responsibility for breach of such an obligation.

* Examples of obligations erga omnes

- outlawing acts of aggression

- outlawing acts of genocide

* Treaty Making Process * Fundamental Principles Governing Extradition





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* Treaty Making Process

1) Negotiation- undertaken directly by the heads of states but he nowusually assigns this task to his authorized representatives.

2) Signature - when the negotiations finally decide on the terms of thetreaty, the same opened for signature

- this step is primarily intended as a means of authenticating the instrument

and for the purpose of symbolizing the good faith of the parties but it doesnot indicate the final consent of the state in cases where ratification o fthe treaty is required.

3) Ratification - power to ratify is vested in the President, subject to theconcurrence of the state

- the role of the senate, however, is only limited to giving or withholding itsconsent, or concurrence to the ratification.

- this is the formal act by which a state confirms and accepts theprovisions of a treaty concluded by its representatives.

4) Exchange of the Instrument- signifies the effectivity of the treaty unlessa different date has been agreed upon by the parties

$ Where ratification is dispensed with, and no effectivity clause is embodiedin a treaty, the instrument is deemed effective upon its signature.

$ Executive Agreements are equally binding obligations upon nations

- in international law, there is no difference between treaties and executiveagreements in their binding effect upon states concerned, as long as thefunctionaries have remained within their powers.

(6.) Extradition- regarded as a form of jurisdictional assistance ininternational law

- resorted to by states nowadays to combat transnational crimes(crimes which defy national borders – drug cases, plunder, etc)

$ Extradition may not be effected unilaterally.- there are always two states involved in an extradition

a) requesting state – the state where the offenses was alleged to havebeen committed

b) surrendering state – the state where the fugitive sought refuge

$ One of the characteristics or our criminal law is territoriality

- we can only enforce our criminal laws within our jurisdiction.

* Fundamental Principles Governing Extradition

1) a state is under no legal obligation under international law to surrender afugitive from justice absent an extradition treaty.

2) religious and political offenses are generally not extraditable.

Attentat Clause – a provision in an extradition treaty which statesthat the murder or assassination of the head of a state or any

member of his family will not be considered a political offense andtherefore extraditable.

3) a person extradited may only be charged and prosecuted in therequesting state for an offense which was the basis of the request for hisextradition (Principle of Specialty)

4) unless otherwise stipulated in the treaty, the offense must have beencommitted in the territory of the requesting state.

* Two Types of Extradition Treaty

1) Old type – contains a list of extraditable offenses

2) Modern type – does not contain a list of extraditable offenses

- also called a “no-list treaty”

- it merely provides that the offense must be punishable in both states

- it is not even required that the designation of the offense be the same inboth jurisdictions.

- follows the principle of double criminality

Wright vs. CA

- Mr. Wright is an Australian who had been staying in thePhilippines for a long time already.

- when he first came over, there was no yet extradition treatybetween the Philippines and Australia

- it was only much later when the two states entered into anextradition treaty

- when Australian government learned that Mr. Wright was in thePhilippines, it requested that Mr. Wright be extradited to Australia to face trialfor his alleged criminal offense therein.

* under PD 1069 (Extradition Law), jurisdiction overextradition cases is with the RTC.

during the extradition proceeding in the Makati RTC Mr Wright investigation the due process safeguards in the latter may not necessarily





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- during the extradition proceeding in the Makati RTC, Mr. Wrightquestioned the entire proceedings on the ground that it violates his rightagainst ex post facto laws.

SC: The prohibition against ex post facto laws under Section22, Article III (Bill of Rights) applies only to criminal or penal laws. Anextradition treaty is neither a criminal nor a penal law. It is a treaty. Itmay be given retroactive effect.

Secretary of Justice vs. Hon. Ralph Lantion

- Govt. of US requested the extradition of Mark Jimenez coursedthrough the Department of Foreign Affairs.

- pursuant to PD 1069, the DFA transmitted the request to the DOJfor initial evaluation

- when Mark Jimenez learned of the request made by the US govtfor his extradition, he now requested the DOJ to furnish him copies of thebasic request for his extradition and the supporting documents andevidence so that allegedly he can prepare for his defense.

-the DOJ refused

SC: (decided January 18, 2000 by a 9-6 vote) Indeed therewas denial of due process. How can you expect him to prepare for hisdefense if he will not be furnished copies of the documents he wasrequesting. An extradition proceeding is similar to a criminal proceeding.Likewise, the initial evaluation stage in an extradition proceeding is alsosimilar to a preliminary investigation in a criminal proceeding.

* Strong dissenting opinion

- this is no longer a case of due process; it is now a case of overdue process

- what happens now to our obligations under the US-RP ExtraditionTreaty.

SC: (decided October 17, 2000 by a 9-6 vote) reconsidered;

controlling doctrine!!!- an extradition proceeding is sui generis

- it is not a criminal proceeding which will call into operation all therights of an accused as guaranteed by the Bill of Rights.

- presumption of innocence does not apply

- as an extradition proceeding is not criminal in character and theevaluation stage in an extradition proceeding is not akin to a preliminary

investigation, the due process safeguards in the latter may not necessarilyapply during the initial evaluation stage in an extradition proceeding.

- this we hold for the procedural due process required by a givenset of circumstances must begin with a determination of the precise natureof the government function involved as well as the private interest that hasbeen affected by governmental action.

- the concept of due process is flexible for not all situations callingfor procedural safeguards call for the same kind of procedure.

* Mark Jimenez is not entitled to the documents he was requestingonly at the early stage of the proceeding.

- eventually he will be furnished those documents at the timeof filing of the case before the court

- the court must consider the more compelling state interest

- the court applied the balancing of interest test in resolving theissue

* Distinctions between extradition proceedings and criminalproceedings

1) the process of extradition does not involve the determination ofthe guilt or innocence of an accused.

- his guilt or innocence will be adjudged in the court of thestate where he will be extradited

- hence, as a rule, constitutional rights that are onlyrelevant to determine the guilt or innocence of an accused cannot beinvoked by an extraditee especially by one whose extradition papers are stillundergoing evaluation.

2) an extradition proceeding is summary in nature while criminalproceedings involve a full blown trial

3) with respect to application of rules of evidence, criminalproceedings requires strict adherence to the rules of evidence whileextradition proceedings follow the liberal interpretation rule.

4) in terms of quantum of evidence to be satisfied, criminalproceedings requires proof beyond reasonable doubt for conviction while afugitive may be ordered extradited upon showing of the existence of a primafacie case (which is even lower than substantial evidence)

5) in a criminal proceeding, judgment becomes executory afterhaving attained finality while in an extrajudicia l proceeding, our courts may

adjudge an individual to be extraditable but the President has the final - the state may be able to show the substantive evil which it is duty





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adjudge an individual to be extraditable but the President has the finaldiscretion to extradite him.

* Judicial Approaches to Resolve Questions in ConstitutionalLaw

1) Dangerous Tendency Rule

- for the state to justify the impairment or suppression of individual

freedoms, it is enough that the state is able to point out a substantive evilwhich the state is duty bound to prevent or suppress.

- for as long as the speech or the expression has that dangeroustendency of producing the substantive evil which the state is duty bound toprevent or suppress, impairment of fundamental freedoms will be justified.

- this rule leans heavily in favor of state power as againstfundamental freedoms.

- abandoned!!!

Ex. Speech – “ibagsak ang bulok na gobyerno! Magrebolusyontayo!”

- the speech had a dangerous tendency of producing thesubstantive evil which the state is duty bound to prevent or suppress – theresulting revolution, death, injuries, chaos, were the substantive evils, even ifit did not take place.

- the arrest and dispersal of the rally will be justified under this rule.

2) Clear and Present Danger Rule

- formulated by Justice Holmes (backed up by Justice Brandeis)

- this is the more libertarian rule

- for the state to be justified in the curtailment or suppression ofundamental freedoms, it is not enough that the state is able to point out thesubstantive evil which the state is duty bound to prevent or suppress, but the

substantive evil must be of a clear and present danger type.- this rule leans heavily in favor of the fundamental freedoms as

against state power.

Ex. A group of demonstrators, unarmed, numbering 10,000participated in by students, urban poor dwellers and religiousmembers shouting “ibagsak ang gobyerno!”

- dispersal of the rally and arrest of the speakers will be unjustified

- the state may be able to show the substantive evil which it is dutybound to suppress or prevent but such substantive evil is not of aclear and present danger type.

* BP 880 – Public Assembly Act

- under which, the orientation/policy to be observed by policeofficers in dealing with rallies and even in the dispersal thereof is maximumtolerance (the highest degree of restraint)

- we therefore live in the era of clear and present danger rule

Bayan vs. Ermita

- if the CPR (Calibrated Pre-Emptive Response) policy adopted bythe Arroyo administration in dealing with rallies and mass actions means nomore than maximum tolerance as defined by BP 880, then it become asuperfluity (no need for that; the policy has already been laid down by law).

- however, if the CPR policy means more than maximum toleranceas defined by BP 880, then it becomes unconstitutional.

$classic example of Justice Holmes when he formulated the clearand present danger test

- when you are inside a movie house and you shouted, “fire, fire”naturally you will get arrested.

- when you are in the middle of an open field and youshouted “fire, fire!”, you will not be arrested.

* The presumption now is that any act of the government alleged tohave infringed upon or impaired fundamental freedom, such an act ormeasure comes to court with a heavy presumption of unconstitutionality.

- so that the burden of justifying the act lies on the part of

the government.* Two Requirements for the Government to Justify the Act

1) by some compelling interest

- the government must be able to show a compellinginterest that will justify the impairment.

2) the measure must be narrowly drawn to preclude abuses

- it must not be overbroad does not suffer from vice of Government of USA vs Judge Purganan





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it must not be overbroad, does not suffer from vice ofvagueness and it is not unreasonable (doctrine of overbreadth and void forvagueness doctrine).

JBL Reyes vs. Bagatsing

- Anti-Base Coalition applied for a permit to hold a rally in front of the US

embassy.

- Mayor Bagatsing denied on the ground that it might be infiltrated whichmight cause violence.

SC: Mayor Bagatsing is wrong. Any act of the government alleged tohave infringed upon fundamental freedoms comes to court with a heavypresumption of unconstitutionality. So that the burden now is on the part ofthe government to justify the act.

3) Balancing of Interest Approach

- two equally desirable interest of society are colliding but these interests areequally desirable to the society.

Sec. of Justice vs. Hon. Ralph Lantion

- there are two compelling state interests:

a) the interest in the observance of due process

b) the interest to comply with our treaty obligation.

SC: The more compelling state interest must be upheld toprevent the escape of potential extraditee which can be precipitated bypremature information of the basis for the request of his extradition.

- especially since, in extradition, an extraditee is always presumedto be a flight risk

- under PD 1069, the moment the extradition case is filed in court,

the judge will immediately issue a warrant for his arrest.- only when he is in custody of law will he be entitled to a copy ofthe documents.

- this is but a soft restraint on his right to due process on that stage

- there is no denial of due process for as long as fundamentalfairness is observed.

Government of USA vs. Judge Purganan

1) before a judge issues a warrant of arrest against a potential extraditee,prior notice and hearing is not required on two basis:

a) first, statutory basis

- under section 6 of PD 1069, once a petition for extradition is filed with theRTC, the judge will immediately issue a warrant of arrest.

- the word used was “immediately”

- this word would be rendered nugatory if the issuance of warrant of arrest isset for hearing.

- arrest subsequent to a hearing is no longer immediate.

- the law could not have contemplated the word “immediately” as a meresuperfluity but as a means of inferring a sense of urgency.

b) second, constitutional basis

- under section 2 of the Bill of Rights, prior notice and hearing was never arequirement for the issuance of a warrant of arrest

- on the contrary, the provision says after examination under oath of thecomplainant and the witnesses he may produce, not of theextraditee.

2) during the pendency of an extradition proceeding, a potential extraditee isnot entitled to post bail; no bail rule applies.

- under section 13 of the Bill of Rights and Rule 114 of the Rules of Court onbail, the word used was “conviction”

- hence, bail is only available to one who is arrested and detained forviolation of Philippine criminal laws.

- it does not apply in extradition cases where the innocence or the guilt of anaccused is not in issue.

- moreover, the right to bail flows from the presumption of innocence in favorof an accused in a criminal case.

- however, by way of an exception, bail may be granted for as long as thefollowing conditions concur:

a) that once granted bail, the extraditee will not be a flight risk or adanger to the community; and

b) that there exists a special humanitarian and compellingcircumstances that will justify the grant of bail

- the burden of proving these two requirements lies on the part of - the generally accepted principles of international law



the burden of proving these two requirements lies on the part ofthe applicant by clear and convincing evidence.

Govt. of HK special administrative region (represented by Phil. DOJ)vs. Judge Olalia (En Banc)

- the ruling in Purganan should be re-examined

- these remedies should include the right to bail

- in light of the various international treaties giving recognition andprotection to human rights particularly the right to life and liberty, a re-examination of the court’s ruling in Purganan is in order

- especially the trend in international law where an individual is notmerely considered as an object but rather a subject of international law andalso in view of the Universal Declaration of Human Rights and the Covenantof Civil and Political Rights where the Philippines is a signatory and becauseof our commitment to human rights under the Constitution.

- yet, for an extraditee to be allowed to post bail, he ought still thetwo requirements:

a) that once granted bail, he will not be a flight risk or a

danger to the community; andb) that there exist a special humanitarian and compelling

circumstance that will justify the grant of bail to him.

- the burden of proving these requirements still lies on the part ofthe applicant by clear and convincing evidence.

Clear and Convincing Evidence

- a new standard of evidence adopted by the court lower than proof beyondreasonable doubt required in a criminal case but higher than preponderanceof evidence required in civil case.

- this is applied only in application for bail in extradition proceeding

- in extradition proceedings, mere prima facie evidence is required.FUNDAMENTALS OF INTERNATIONAL LAW

Relations between International Law and Municipal Law from the viewof practice

* Two Doctrines

1) Doctrine of Incorporation

the generally accepted principles of international lawautomatically become part of their laws and will no longer require anenabling act from the legislative body.

- the Philippines subscribe to this doctrine under section 2,article II of the Constitution, which provides that, “the Philippines adopts thegenerally accepted principles of international law as part of the lawof the land.”

2) Doctrine of Transformation

- the generally accepted principles of international lawdoes not automatically become part of their laws and will still require anenabling act from the legislative body.

* Examples of generally accepted principles of international law

Pacta Sunt Servanda (treaties must be observed in good faith)

- under the pacta sunt servanda rule, a state may not advance theprovisions of its own Constitution, as well as that of its laws in order not tocomply with its obligations under a treaty.

- a state must make the necessary modifications to its laws in order

to comply with its obligations in a treaty.Doctrine of State Immunity from Suit - a state may not be sued

without its consent

Doctrine of Sovereign Equality of all States

- par in parem non habet imperium

- all states are sovereign equals; an equal may notassume jurisdiction over another equal.

Rebus Sic Stantibus (things remaining as they are)

- opposite of pacta sunt servanda

Special Thanks To:ATTY. JOAN LOU P. GAMBOA

For sharing her handwritten lecture notesin Political Law Review

under Atty. Edwin Sandovaland for her generous support

throughout the yearsto UST Law Batch 2009!!!

Documents

Poli-sandoval Notes (1)